Investor Representations and Warranties. The Investor hereby acknowledges, represents and warrants to, and agrees with, the Company and its affiliates as follows: (a) The Investor is acquiring the Shares for his or its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Shares or any of the components of the Shares. Further, the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribing. (b) The Investor has full power and authority to enter into this Agreement, the execution and delivery of this Agreement has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the Investor. (c) The Investor acknowledges its understanding that the offering and sale of the Shares is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Synergy Pharmaceuticals, Inc.), Securities Purchase Agreement (Synergy Pharmaceuticals, Inc.)

Investor Representations and Warranties. The Investor hereby acknowledges, represents and warrants to, and agrees with, the Company and its affiliates as follows: (a) The Investor is acquiring the ~~Shares~~ New Securities for his ~~or its~~ own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such ~~Shares~~ New Securities or any of the components of the ~~Shares~~New Securities. Further, the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the ~~Shares~~ New Securities for which the Investor is ~~subscribing~~subscribing or any of the components of the New Securities. (b) The Investor has full power and authority to enter into this Agreement, the execution and delivery of this Agreement has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the Investor. (c) The Investor acknowledges ~~its~~ his understanding that the offering and sale of the ~~Shares~~ New Securities is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) by virtue of Section 4(2) of the Securities ~~Act and the provisions of Regulation D promulgated thereunder (“Regulation D”)~~Act. In furtherance thereof, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring ~~Shares~~ New Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company;; and (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor ~~(together with his Investor Representative(s), if any)~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the ~~Shares~~New Securities. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the ~~Shares~~New Securities. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Callisto Pharmaceuticals Inc), Amendment Agreement (Fermavir Pharmaceuticals, Inc.)

Investor Representations and Warranties. The ~~Investor~~ undersigned hereby acknowledges, represents and warrants to, and agrees ~~with,~~ with the Company and its affiliates as follows: (a) The ~~Investor~~ undersigned is acquiring the ~~Shares~~ Securities for his ~~or its~~ own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such ~~Shares~~ Securities or any ~~of the components of the Shares~~portion thereof. Further, the ~~Investor~~ undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to ~~any of~~ the ~~Shares~~ Securities for which the ~~Investor~~ undersigned is ~~subscribing~~subscribing or any part of the Securities. (b) The ~~Investor~~ undersigned has full power and authority to enter into this Agreement, the execution and delivery of this Agreement has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the ~~Investor~~undersigned. (c) The ~~Investor~~ undersigned is not subscribing for the Securities as a result of or subsequent to any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by person previously not known to the undersigned in connection with investment securities generally. (d) The undersigned understands that the Company is under no obligation to register the Securities under the Securities Act, or to assist the undersigned in complying with the Securities Act or the securities laws of any state of the United States or of any foreign jurisdiction. (e) The undersigned is (i) experienced in making investments of the kind described in this Agreement and the related documents, (ii) able, by reason of his business and financial experience and that of his professional advisors (who are not affiliated with or compensated in any way by the Company or any of its affiliates or selling agents), to protect his own interests in connection with the transactions described in this Agreement, and the related documents, and (iii) able to afford the entire loss of his investment in the Securities. The undersigned further acknowledges ~~its~~ and understands that the Company had no operations in 2010 and was deemed a shell company at that time. (f) The undersigned acknowledges his understanding that the offering and sale of the Purchased Shares, Warrants and the issuance of the Warrant Shares upon due exercise of the Warrants is intended to be exempt from registration under the Securities ~~Act of 1933, as amended (the “Securities~~ Act~~”) by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”)~~. In furtherance thereof, in addition to the ~~Investor~~ other representations and warranties of the undersigned made herein, the undersigned further represents and warrants to and agrees with the Company and its affiliates as follows: (i) The ~~Investor~~ undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the ~~Investor~~ undersigned has in mind merely acquiring ~~Shares~~ the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The ~~Investor~~ undersigned does not have any such intention.; (ii) The ~~Investor~~ undersigned has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The ~~Investor (together with his Investor Representative(s), if any)~~ undersigned has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the ~~Shares. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the Shares.~~Securities; (div) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is undersigned has been provided an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the ~~Shares~~Securities, the ~~Company,~~ Company and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) ~~determined that~~ The undersigned has carefully reviewed all of the ~~Shares are a suitable investment for~~ Company’s filings under the ~~Investor and that at this time~~ Securities Exchange Act of 1934, as amended (the ~~Investor could bear a complete loss of such investment~~“Exchange Act”). (fg) The ~~Investor~~ undersigned is not relying on the Company, or its affiliates or agents with respect to economic considerations involved in this investment. The ~~Investor~~ undersigned has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares solely on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreementown advisors. (h) No representations or warranties have been made to the ~~Investor~~ undersigned by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for ~~Shares~~ the ~~Investor~~ Securities the undersigned is not relying upon any representations other than those contained herein~~. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009~~. (i) ~~Any information which~~ Each certificate representing the ~~Investor has heretofore furnished to the Company~~ Securities shall be endorsed with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shareslegends, in addition to any ~~notation~~ other legend required to be placed thereon by ~~law~~ applicable federal or ~~by this Agreement, shall have the following legend~~state securities laws: ~~“THESE~~ "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF ~~1933, AS AMENDED (THE “SECURITIES ACT”),~~ 1933 AND MAY NOT BE ~~OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED~~ SOLD OR TRANSFERRED ~~EXCEPT (i) PURSUANT~~ IN THE ABSENCE OF SUCH REGISTRATION OR WITHOUT AN EXEMPTION THEREFROM OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO A THE COMPANY THAT SUCH REGISTRATION ~~STATEMENT~~ IS NOT REQUIRED UNDER THE SECURITIES ACT ~~WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR~~ OF 1933." The undersigned consents to the Company making a notation on its records or giving instructions to any transfer agent of the Company in order to implement the restrictions on transfer of the Securities set forth herein. (iij) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE The undersigned is not an “~~BLUE SKY~~accredited investor” ~~OR SIMILAR SECURITIES LAW~~as that term is defined in Rule 501 of the General Rules and Regulations under the Securities Act.” (k) The ~~Investor~~ undersigned understands that an investment in the ~~Shares~~ Securities is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The ~~Investor’s~~ undersigned's overall commitment to investments which are not readily marketable is not disproportionate to the ~~Investor’s~~ undersigned's net worth, and an investment in the ~~Shares~~ Securities will not cause such overall commitment to become excessive. (m) ~~Investor is not purchasing~~ The undersigned has received all documents, records, books and other information pertaining to the ~~Shares as a result of any advertisement, article, notice or~~ undersigned’s investment in the Company that has been requested by the undersigned. The undersigned has reviewed all reports and other ~~communication regarding~~ documents filed by the Company with the Securities ~~published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.~~ and Exchange Commission (~~n) Other than~~ the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“~~Discussion Time~~SEC Documents”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The ~~foregoing representations~~undersigned represents and warrants to the Company that all information that the undersigned has provided to the Company, ~~warranties~~ including, without limitation, the information in the Investor Questionnaire attached hereto or previously provided to the Company (the “Investor Questionnaire”), is correct and ~~agreements shall survive~~ complete as of the ~~Closing~~date hereof. (o) Other than as set forth herein, the undersigned is not relying upon any other information, representation or warranty by the Company or any officer, director, stockholder, agent or representative of the Company in determining to invest in the Securities. The undersigned has consulted, to the extent deemed appropriate by the undersigned, with the undersigned’s own advisers as to the financial, tax, legal and related matters concerning an investment in the Securities and on that basis believes that his investment in the Securities is suitable and appropriate for the undersigned. (p) The undersigned is aware that no federal or state agency has (i) made any finding or determination as to the fairness of this investment, (ii) made any recommendation or endorsement of the Securities or the Company, or (iii) guaranteed or insured any investment in the Securities or any investment made by the Company. (q) The undersigned understands that the price of the Securities offered hereby bear no relation to the assets, book value or net worth of the Company and were determined arbitrarily by the Company. The undersigned further understands that there is a substantial risk of further dilution on his investment in the Company.

Appears in 2 contracts

Samples: Subscription Agreement (Brisset Beer International, Inc.), Subscription Agreement (Brisset Beer International, Inc.)

Investor Representations and Warranties. ~~The~~ By executing and delivering this Agreement, the Investor ~~hereby~~ acknowledges, warrants and represents ~~and warrants to, and agrees with,~~ to the Company ~~and its affiliates~~ as follows: (a) The Investor has obtained and reviewed all documents filed by the Company with the SEC pursuant to Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), including without limitation the information contained therein under the heading “Risk Factors” (all such documents are collectively referred to hereinafter as the “Disclosure Documents”). (b) The Investor has been given access to full and complete information regarding the Company and has utilized such access to the Investor’s satisfaction for the purpose of obtaining information in addition to, or verifying information included in, the Disclosure Documents. Particularly, the Investor has been given reasonable opportunity to meet with and/or contact Company representatives for the purpose of asking questions of, and receiving answers from, such representatives concerning Company’s business, management, financial affairs and the terms and conditions of the offering and to obtain any additional information, to the extent reasonably available, necessary to verify the accuracy of information provided in the Disclosure Documents. (c) The Investor is an “accredited investor” pursuant to Rule 501 of Regulation D under the Securities Act. (d) The Investor is acquiring the Shares for his or its own account ~~as principal, not as a nominee or agent,~~ for investment ~~purposes only,~~ only and ~~not~~ with ~~a view to, or for, resale, distribution or fractionalization thereof in whole or in part and~~ no ~~other person has a direct or indirect beneficial interest in~~ present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of ~~the components of the~~ such Shares. ~~Further~~The Investor will not, ~~the Investor does not have any contract~~directly or indirectly, ~~undertaking~~offer, ~~agreement or arrangement with any person to~~ sell, pledge, transfer or ~~grant participations~~ otherwise dispose of (or solicit any offers to ~~such person~~ buy, purchase or otherwise acquire to ~~any third person, with respect to~~ take a pledge of) any of the Shares ~~for which~~ except in compliance with the ~~Investor is subscribing~~Securities Act and applicable state securities laws. (be) ~~The~~ If an entity, the Investor has ~~full power~~ not been organized, reorganized or recapitalized specifically for the purpose of investing in the Shares, and ~~authority to enter into this Agreement, the execution and delivery of~~ this Agreement has been duly ~~authorized~~authorized by all necessary action on the part of the Investor, ~~if applicable~~has been duly executed by an authorized officer or representative of the Investor, and ~~this Agreement constitutes~~ is a legal, valid and ~~legally~~ binding obligation of the ~~Investor. (c) The~~ Investor ~~acknowledges~~ enforceable in accordance with its understanding that the offering and sale of the Shares is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investmentterms. (f) The Investor is ~~not relying on~~ a bona fide resident of the ~~Company, or its affiliates with respect to economic considerations involved~~ State identified in ~~this investment. The Investor has relied on~~ in the ~~advice of, or has consulted with only those persons~~signature page hereto, if ~~any~~the Investor is a partnership, ~~named as Investor Representative(s) herein and in~~ corporation, limited liability company or other entity, then the ~~Accredited Investor Questionnaire. Each Investor Representative is capable~~ office of ~~evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to~~ the Investor in ~~writing (a copy~~ which its principal place of ~~which~~ business is ~~annexed to this Agreement)~~ identified in the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all address of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation Investors set forth ~~above shall only apply with respect to~~ on the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock)signature page hereto. (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Navidea Biopharmaceuticals, Inc.), Stock Purchase Agreement (Navidea Biopharmaceuticals, Inc.)

Investor Representations and Warranties. ~~The Investor hereby acknowledges~~Each Investor, ~~represents~~ severally and not jointly, represents, warrants ~~to,~~ and agrees ~~with, the Company and its affiliates~~ as follows: (a1) ~~The~~ Investor ~~is acquiring~~ has received copies of the ~~Shares for his or its own account as principal~~Registration Statement and the Prospectus, ~~not as a nominee or agent, for investment purposes only~~including all documents and information incorporated by reference therein and amendments thereto, and understands that no Person has been authorized to give any information or to make any representations that were not ~~with~~ contained in the Registration Statement and the Prospectus, and Investor has not relied on any such other information or representations in making a ~~view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Shares or any~~ decision to purchase the Investor Shares. Investor hereby consents to receiving delivery of the ~~components of~~ Registration Statement and the ~~Shares. Further~~Prospectus, ~~the Investor does not have~~ including all documents and information incorporated by reference therein and any ~~contract~~amendments thereto, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribingby electronic mail. (b2) ~~The~~ Investor acknowledges that it has sole responsibility for its own due diligence investigation and its own investment decision, and that in connection with its investigation of the accuracy of the information contained or incorporated by reference in the Registration Statement and the Prospectus and its investment decision, Investor has ~~full power and authority to enter into~~ not relied on any representation or information not set forth in this Agreement, the Registration Statement or the Prospectus. (3) The execution and delivery of this Agreement ~~has~~ by Investor and the performance of this Agreement and the consummation by Investor of the transactions contemplated hereby have been duly ~~authorized~~authorized by all necessary (corporate, ~~if applicable~~partnership or limited liability in the case of a corporation, partnership or limited liability company) action of Investor, and this ~~Agreement constitutes~~ Agreement, when duly executed and delivered by Investor, will constitute a valid and legally binding ~~obligation of the~~ instrument, enforceable in accordance with its terms against Investor. (c) The Investor acknowledges its understanding that the offering and sale of the Shares is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor enforcement hereof may be limited by the ~~Company, or any officer, employee, agent, affiliate or subsidiary~~ effect of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable ~~“Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares~~bankruptcy, ~~in addition to any notation required by law or by this Agreement~~insolvency, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine reorganization or similar ~~media~~ laws or ~~broadcast over television~~ court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or ~~radio or presented~~ at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stocklaw). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 2 contracts

Samples: Securities Purchase Agreement (First Pactrust Bancorp Inc), Securities Purchase Agreement (First Pactrust Bancorp Inc)

Investor Representations and Warranties. ~~The~~ In connection with the purchase and sale of the Investor ~~hereby acknowledges~~Stock hereunder and the warrants pursuant to the Warrant Agreement, the Investor represents and warrants ~~to, and agrees with,~~ to the ~~Company and its affiliates as follows~~Corporation that: (ai) The Investor is ~~acquiring~~ aware that the ~~Shares for his or its own account as principal~~Investor Stock, ~~not as a nominee or agent, for investment purposes only,~~ the Warrants and ~~not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Shares or any~~ the shares of Common Stock issuable upon exercise of the ~~components of the Shares. Further~~Warrants (collectively, the "Investor ~~does~~ Securities") have not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribing. (b) The Investor has full power and authority to enter into this Agreement, the execution and delivery of this Agreement has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the Investor. (c) The Investor acknowledges its understanding that the offering and sale of the Shares is intended to be exempt from registration registered under the Securities Act of 1933, as amended (the “"Securities Act”) "), or any state securities laws, in reliance on exemptions from such registration. It is understood that reliance by ~~virtue of Section 4(2)~~ the Corporation on such exemptions is predicated in part upon the truth and accuracy of the ~~Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof,~~ statements made by the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in ~~mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention~~this Agreement. (ii) The ~~Investor has~~ Investor's duly authorized representatives, either alone or with the ~~financial ability to bear the economic risk~~ assistance of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D)'s professional advisors, the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has have such knowledge and experience in financial and business matters ~~as to be~~ that they are capable of evaluating the merits and risks of Investor's purchase of the ~~prospective~~ Investor Securities. (iii) The Investor has sufficient financial resources to be able to bear the risk of the Investor's investment in the ~~Shares. If other than an individual,~~ Investor Securities. (iv) The duly authorized representatives of the Investor ~~also represents it has not~~ have either spoken or met with, or been ~~organized~~ given reasonable opportunity to speak with or meet with, representatives of the Corporation for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask asking questions of, and ~~receive~~ receiving answers and information from, ~~the Company or its~~ such representatives concerning the ~~terms and conditions of~~ Investor's investment in the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; andInvestor Securities. (v) ~~determined that the Shares are a suitable investment for~~ The Investor is purchasing the Investor Securities for its own account for investment purposes and ~~that at this time~~ not with a view toward the sale or distribution of all or any part of such securities. No one other than the Investor ~~could bear a complete loss of such investment~~has any beneficial interest in the Investor Securities. (fvi) ~~The Investor~~ It is ~~not relying on the Company~~understood that, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to because the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities ~~Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares~~ have not been registered under the Securities ~~Act or~~ Act, (a) the Investor Securities have the status of securities acquired in a transaction under Section 4(2) of the ~~securities laws of any state and, therefore,~~ Securities Act; and (b) the Investor Securities cannot be ~~resold, pledged, assigned or otherwise disposed of~~ sold unless ~~they are~~ such stock is subsequently registered or an exemption from registration is available. (vii) Investor will in no event sell or distribute all or any part of the Investor Securities unless (a) there is an effective registration statement under the Securities Act and ~~under the~~ applicable state securities laws covering any such transaction involving such stock, or (b) the Corporation receives an opinion of the Investor's legal counsel, in form acceptable to the Corporation, stating that such ~~states or an exemption~~ transaction is exempt from ~~such registration is available~~registration. ~~In particular,~~ 3 (viii) Investor understands that at the ~~Investor is aware that the Shares are “restricted securities,” as such term is defined in~~ present time Rule 144 promulgated under the Securities Act ~~(“Rule 144”), and they~~ may not be ~~sold pursuant to Rule 144 unless all~~ relied upon for the resale or distribution of the ~~conditions of Rule 144 are met~~Investor Securities because the Corporation does not file the reports or make information about the Corporation publicly available nor is there a public market for the Investor Securities. ~~The Investor also understands that~~Moreover, ~~except as otherwise provided herein and~~ there can be no assurance that the Corporation will in the ~~certificates~~ future file such reports or make publicly available such information, or that a public market for the ~~Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the~~ Investor Securities ~~Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement~~will develop. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 1 contract

Samples: Investor Subscription Agreement (Freeshop Com Inc)

Investor Representations and Warranties. The undersigned Investor hereby ~~acknowledges, represents~~ makes each and ~~warrants to,~~ every one of the representations and ~~agrees with, the Company and its affiliates as follows~~warranties set forth below: (a) The Investor is acquiring the Shares for his or its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Shares or any of the components of the Shares. Further, the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribing. (b) The Investor has the full right, power and authority to enter into this ~~Agreement,~~ Agreement and to carry out and consummate the ~~execution and delivery of this Agreement has been duly authorized, if applicable, and this~~ transactions contemplated herein. This Agreement constitutes a the legal, valid and ~~legally~~ binding obligation of the Investor. (cb) ~~The~~ Investor ~~acknowledges its understanding~~ is an "Accredited Investor" as that ~~the offering and sale~~ term is defined in Section 501(a) of ~~the Shares is intended to be exempt from registration~~ Regulation D promulgated under the Securities Act of 1933, as amended (the ~~“Securities~~ "Act~~”) by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”~~"). In furtherance thereof, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (iic) ~~The~~ Investor has the financial ability to bear the economic risk of ~~his~~ Investor's investment, can afford to sustain a complete loss of such investment, has adequate means ~~for~~ of providing for ~~his~~ Investor's current needs and personal contingencies and has no need for liquidity ~~with respect to his investment~~ in Investor's Investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the Shares. (d) ~~The information~~ Investor will acquire the Debenture for Investor's own account (or for the joint account of Investor and Investor's spouse either in ~~the Accredited Investor Questionnaire completed and executed~~ joint tenancy, tenancy by the entirety or tenancy in common) for investment and not with a view to the sale or distribution thereof or the granting of any participation therein, and Investor ~~is substantially in~~ has no present intention of distributing or selling to others any of such interest or granting any participation therein, other than pursuant to an effective registration statement under the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D.Act. (e) ~~The~~ Investor ~~and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and~~ has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity ~~for a reasonable period of time prior to the date hereof~~ to ask questions ~~of,~~ of and to receive answers ~~from,~~ from persons acting on the ~~Company or its representatives~~ Company's behalf concerning the terms and conditions of ~~the offering of the Shares~~ this transaction and ~~other matters pertaining to this investment, and have~~ also has been given the opportunity ~~for a reasonable period of time prior to the date hereof~~ to obtain ~~such~~ any additional information ~~necessary to verify~~ which the ~~accuracy~~ Company possesses or can acquire without unreasonable effort or expense. As a result, the Investor is cognizant of the financial condition, capitalization, use of proceeds from this financing and the operations and financial condition of the Company, has available full information ~~provided in order for him~~ concerning its affairs and has been able to evaluate the merits and risks of ~~purchase of~~ the ~~Shares to~~ investment in the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investmentDebenture. (f) The ~~Investor is not relying on~~ funds provided for the ~~Company~~Investor's purchase are either separate property, community property over which the signatory(ies) hereto has or ~~its affiliates with respect~~ have the right of control or are otherwise funds as to ~~economic considerations involved in this investment. The Investor~~ which the undersigned has ~~relied on~~ the ~~advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable~~ sole right of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereofmanagement. (g) ~~The~~ Investor ~~represents, warrants and agrees that he will~~ is not ~~sell~~ an associated person or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws affiliate of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all member firm of the ~~conditions~~ National Association of ~~Rule 144 are met. The Investor also understands that~~Securities Dealers, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement.Inc. (h) ~~No representations or warranties have been made to the~~ Investor ~~by the Company, or any officer, employee, agent, affiliate or subsidiary~~ is a resident of the ~~Company, other than the representations~~ State of ~~the Company contained herein~~Colorado, and ~~in subscribing for Shares the Investor is~~ was not ~~relying upon any representations other than those contained herein. Investor has carefully reviewed filings made~~ solicited by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply its agents with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock)Investment. (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 1 contract

Samples: Subscription Agreement (Lakota Technologies Inc)

Investor Representations and Warranties. ~~The~~ Each Investor ~~hereby acknowledges,~~ represents and warrants toto Joby, severally and ~~agrees with~~not jointly, ~~the Company and its affiliates as follows~~that: (a) The Investor ~~is acquiring~~ has full right, power and authority to enter into this Agreement and to consummate the ~~Shares for his or its own account as principal~~transactions contemplated hereby and has taken all necessary action to authorize the execution, ~~not as a nominee or agent, for investment purposes only~~delivery and performance of this Agreement, and ~~not with~~ (ii) this Agreement constitutes a ~~view to, or for, resale, distribution or fractionalization thereof in whole or in part~~ valid and ~~no other person has a direct or indirect beneficial interest in such Shares or any~~ binding obligation of the ~~components of the Shares. Further,~~ Investor enforceable against the Investor ~~does not have any contract~~in accordance with its terms, ~~undertaking, agreement~~ except as may be limited or ~~arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of~~ otherwise affected by the ~~Shares for which the Investor is subscribing~~Equitable Exceptions. (b) The Investor represents that it has ~~full power~~ received (or otherwise had made available to it by the filing by the Company of an electronic version thereof with the Commission) the Base Prospectus, the Prospectus Supplement and ~~authority~~ the Incorporated Documents prior to ~~enter into~~ or in connection with its receipt of this Agreement. The Investor acknowledges that, prior to the ~~execution and~~ delivery of this Agreement ~~has been duly authorized~~to the Company, ~~if applicable, and this Agreement constitutes a valid and legally binding obligation~~ the Investor will receive certain additional information regarding the offering of the ~~Investor~~Shares, including pricing information (the “Offering Information”). The Offering Information may be provided to the Investor by any means permitted under the Securities Act, including in the Prospectus Supplement (delivered to the Investor or made available to it by the filing of an electronic version thereof with the Commission), a free writing prospectus or oral communications. (c) The ~~Investor acknowledges~~ Investor, together with its ~~understanding~~ affiliates (as that term is defined under Rule 405 of the Securities Act), has not, prior to the date of this Agreement, sold, offered to sell, solicited offers to buy, disposed of, loaned, pledged or granted any right with respect to (collectively, a “Disposition”), the offering and sale of the Shares. Such prohibited sales or other transactions would include, without limitation, effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to the offering and sale of the Shares. | (d) The Investor shall not issue any press release or make any other public announcement relating to this Agreement unless (i) the content thereof is mutually agreed to by the Company and the Investor, or (ii) the Investor is advised by its counsel that such press release or public announcement is required by law. (e) If the Investor is outside the United States, the Investor will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers the Shares or has in its possession or distributes any offering material, in all cases at its own expense. (f) The Investor understands that nothing in this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as the Investor, in its sole discretion, has deemed necessary or appropriate in connection with the Investor’s purchase of the Shares. (g) Neither the Investor nor any of its officers or directors or any other person acting in a similar capacity or carrying out a similar function, is ~~intended~~ (i) a person named on the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List, the Sectoral Sanctions Identification List, or any other similar list of sanctioned persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control, or any similar list of sanctioned persons administered by the European Union or any individual European Union member state, including the United Kingdom (collectively, “Sanctions Lists”); (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Russia, Belarus, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory embargoed or subject to ~~be exempt~~ substantial trade restrictions by the United States, the European Union or any individual European Union member state, including the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). To the extent required by applicable law, the Investor also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the European Union, or any individual European Union member state, including the United Kingdom, to the extent applicable to the Investor. The Investor further represents that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from ~~registration under~~ a Prohibited Investor. (h) The Investor does not act on behalf of (i) any employee benefit plan that is subject to Title I of the ~~Securities~~ Employee Retirement Income Security Act of ~~1933~~1974, as amended (“ERISA”), (ii) any plan or an individual retirement account or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “~~Securities Act~~Code”), (iii) ~~by virtue~~ any entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) any employee benefit plan that is a governmental plan (as defined in Section ~~4(2~~3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Securities Act and the~~ foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ~~Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof,~~ ERISA or the ~~Investor represents and warrants to and agrees with the Company and its affiliates as follows:~~Code. (i) ~~The Investor realizes that~~ At the ~~basis for the exemption may not be present if, notwithstanding such representations~~Closing, the Investor ~~has in mind merely acquiring~~ will have sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares ~~for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention~~pursuant to this Agreement. (iij) The Investor ~~has the financial ability to bear the economic risk~~ hereby acknowledges that it is not acting as a member of ~~his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment~~ a “group” (as such term is defined in ~~the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes~~ Rule 13d of the ~~private placement exemption under the Securities~~ Exchange Act~~. If the Investor has appointed a Investor Representative (which term is used herein~~ ) with any other investor in connection with the ~~same meaning as given in Rule 501(h)~~ offering and sale of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the Shares. (dk) The ~~information~~ Investor represents that, except as set forth below, (a) it has had no position, office or other material relationship within the past three years with Joby or any of its affiliates, (b) it is not a FINRA member or an Associated Person (as such terms are defined under the FINRA Membership and Registration Rules Section 1011) as of the Closing, and (c) neither such Investor nor any group of Investors (as identified in a public filing made with the ~~Accredited Investor Questionnaire completed and executed by~~ Commission) of which the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information part in connection with the offering of the ~~Shares which is not contained herein~~Shares, acquired, or obtained the right to acquire, 20% or more of the Common Stock (or securities convertible into or exercisable for Common Stock) or the voting power of Joby on a post-transaction basis. Exceptions: | (i) Scottish Mortgage Investment Trust plc (“Scottish Mortgage”), an affiliate of Xxxxxxx Xxxxxxx Overseas Limited, invested in Joby pursuant to that certain Series C Preferred Stock Purchase Agreement, dated 30 August 2019, by and among Joby, Scottish Mortgage and other Investors (as defined therein); and (vii) ~~determined that the Shares are a suitable investment for the Investor~~ Scottish Mortgage and that at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act Keystone Positive Change Investment Trust plc (“~~Rule 144~~Keystone”), both affiliates of Xxxxxxx Xxxxxxx Overseas Limited, entered into Subscription Agreements, dated 23 February 2023, by and ~~they may not be sold pursuant to Rule 144 unless all~~ among Reinvent Technology Partners and each of ~~the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein~~ Scottish Mortgage and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this AgreementKeystone. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 1 contract

Samples: Common Stock Purchase Agreement (Joby Aviation, Inc.)

Investor Representations and Warranties. The Investor hereby ~~acknowledges,~~ represents and warrants ~~to, and agrees with, the Company and its affiliates as follows~~that: (a) The Investor ~~is acquiring~~ acknowledges that the Shares ~~for his or its own account~~ are "restricted securities" (as ~~principal~~such term is defined in Rule 144 promulgated under the Act ("Rule 144")), that the Shares will include the restrictive legend set forth in Section 1.03 of this Agreement, and, except as otherwise set forth in this Agreement, that the Shares cannot ~~as a nominee or agent, for investment purposes only,~~ be sold unless registered with the United States Securities and ~~not with a view to~~Exchange Commission ("SEC") and qualified by appropriate state securities regulators, or ~~for~~unless Investor otherwise complies with an exemption from such registration and qualification (including, ~~resale~~without limitation, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Shares or any of the components of the Shares. Further, the Investor does not have any contract, undertaking, agreement or arrangement compliance with ~~any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribing~~Rule 144). (b) The Investor has ~~full power~~ adequate means of providing for current needs and ~~authority~~ contingencies, has no need for liquidity in the investment, and is able to ~~enter into this Agreement,~~ bear the ~~execution~~ economic risk of an investment in the Shares. Investor represents that Investor is able to bear the economic risk of the investment and ~~delivery~~ at the present time could afford a complete loss of such investment. Investor has reviewed this Agreement and the Disclosure Documents (as defined in Section 2.02(b)) with care. Additionally, Investor has ~~been duly authorized, if applicable,~~ had a full opportunity to inspect the books and ~~this Agreement constitutes a valid and legally binding obligation~~ records of the ~~Investor~~Company and to make any and all inquiries of Company officers and directors regarding the Company and its business as Investor has deemed appropriate. (c) The Investor ~~acknowledges its understanding that the offering and sale~~ is an "Accredited Investor" as defined in Regulation D of the ~~Shares is intended to be exempt from registration under~~ Act or Investor, either alone or with Investor's professional advisers who are unaffiliated with, have no equity interest in and are not compensated by the ~~Securities Act of 1933, as amended (the “Securities Act”) by virtue of Section 4(2)~~ Company or any affiliate or selling agent of the ~~Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof~~Company, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed directly or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investmentindirectly, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such sufficient knowledge and experience in financial and business matters ~~as to be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the~~ that Investor also represents it has not been organized for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and offered by the Company ~~or any affiliate or subsidiary thereof~~and of making an informed investment decision with respect thereto and has the capacity to protect Investor's own interests in connection with Investor's proposed investment in the Shares. (gd) The Investor ~~represents~~is acquiring the Shares solely for the Investor's own account as principal, ~~warrants~~ for investment purposes only and ~~agrees that he~~ not with a view to the resale or distribution thereof, in whole or in part, and no other person or entity has a direct or indirect beneficial interest in such Shares. (e) The Investor will not sell or otherwise transfer the Shares without registration under the ~~Securities~~ Act or an exemption therefrom and fully understands and agrees that he the Investor must bear the economic risk of ~~his~~ the Investor's purchase for an indefinite period of time because, among other reasons, the Shares have not been registered under the ~~Securities~~ Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the ~~Securities~~ Act and under the applicable securities laws of such states or unless an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (hf) ~~No representations or warranties have been made to~~ The Investor is not acquiring the ~~Investor by~~ Shares based upon his knowledge of material non-public information about the Company, ~~or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein,~~ and ~~in subscribing for Shares~~ the Investor further avers that he is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as aware of ~~the date of this Agreement and if there should be~~ any material ~~change in such~~ non-public information ~~he will immediately furnish such revised or corrected information to~~ about the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 1 contract

Samples: Securities Purchase Agreement (Red Giant Entertainment, Inc.)

Investor Representations and Warranties. ~~The~~ By executing and delivering this Agreement, the Investor ~~hereby~~ acknowledges, warrants and represents ~~and warrants to, and agrees with,~~ to the Company ~~and its affiliates~~ as follows: A. The Investor has obtained and reviewed all documents filed by the Company with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (a) all such documents are collectively referred to hereinafter as the “Disclosure Documents”). B. The Investor has been given access to full and complete information regarding the Company that has been requested and has utilized such access to the Investor’s satisfaction for the purpose of obtaining information in addition to, or verifying information included in, the Disclosure Documents. Particularly, the Investor has been given reasonable opportunity to meet with and/or contact Company representatives for the purpose of asking questions of, and receiving answers from, such representatives concerning the terms and conditions of the offering and to obtain any additional information, to the extent reasonably available, necessary to verify the accuracy of information provided in the Disclosure Documents. C. The Investor is acquiring the Shares for his or its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Shares or any an “accredited investor” pursuant to Rule 501 of the components of the Shares. Further, the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribing. (b) The Investor has full power and authority to enter into this Agreement, the execution and delivery of this Agreement has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the Investor. (c) The Investor acknowledges its understanding that the offering and sale of the Shares is intended to be exempt from registration Regulation D under the Securities Act of 1933, as amended (the “Securities Act”~~) by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”~~). In furtherance thereof, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor ~~does not have any such intention. (ii) The Investor has~~ has, either alone or with the assistance of a professional advisor, sufficient knowledge and experience in financial ~~ability to bear the economic risk of his investment, has adequate means for providing for his current needs~~ and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If business matters that the Investor ~~has appointed a Investor Representative~~ believes himself/herself (~~which term is used herein with the same meaning as given in Rule 501(h~~or itself) capable of ~~Regulation D), the Investor has been advised by his Investor Representative as to~~ evaluating the merits and risks of ~~an investment in~~ this purchase the ~~Company in general~~ Shares, and the suitability of an investment in the ~~Shares for~~ Company in light of the ~~Investor in particular; and (iv)~~ Investor’s financial condition and investment needs, and legal, tax and accounting matters. The Investor ~~(together with his Investor Representative(s), if any)~~ has ~~such knowledge and experience in financial and business matters as to be capable of evaluating~~ relied upon the ~~merits and risks~~ advice of the ~~prospective investment in the Shares. If~~ Investor’s legal counsel and accountants or other ~~than an individual~~legal and financial advisors with respect to legal, the Investor also represents it has not been organized for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents tax and other ~~public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior~~ considerations relating to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of ~~the~~ Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) hereunder. The Investor is not relying on solely upon the Company or the Company~~, or its affiliates~~ ’s legal counsel with respect to the economic considerations involved in ~~this investment~~making an investment decision in the Company and the purchase of the Shares. D. The Investor is acquiring the Shares for his or its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares. The Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire to take a pledge of) any of the Shares except in compliance with the Securities Act and applicable state securities laws. E. If an entity, the Investor has ~~relied~~ not been organized, reorganized or recapitalized specifically for the purpose of investing in the Shares, and this Agreement has been duly authorized by all necessary action on the ~~advice of~~part of the Investor, has been duly executed by an authorized officer or ~~has consulted~~ representative of the Investor, and is a legal, valid and binding obligation of the Investor enforceable in accordance with ~~only those persons, if any, named as~~ its terms. F. The Investor ~~Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an~~ understands that his or its investment in the Shares ~~on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (~~involves a ~~copy~~ significant degree of ~~which is annexed to this Agreement) the specific details of any and all past~~risk, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic including a risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all total loss of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the CompanyInvestor’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. ~~(l)~~ G. The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is ~~not purchasing the Shares as~~ a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities bona fide resident of the ~~Company during the period commencing from the time that such Investor first received a term sheet from the Company~~ State identified in (or, if an entity, is organized or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations incorporated under the laws ~~described herein~~of) and received the subscription and decided to invest in the Securities in, the particular State set forth in the signature page hereto. ~~(n) The foregoing representations, warranties and agreements shall survive the Closing.~~

Appears in 1 contract

Samples: Preference Share Purchase Agreement (AnPac Bio-Medical Science Co., Ltd.)

Investor Representations and Warranties. The Investor hereby ~~acknowledges,~~ represents and warrants ~~to, and agrees with, the Company and its affiliates as follows~~that: (a) The Investor ~~is acquiring~~ acknowledges that the Shares ~~for his or its own account~~ are "restricted securities" (as ~~principal~~such term is defined in Rule 144 promulgated under the Act ("Rule 144")), that the shares will include the restrictive legend set forth in Section 1.03 of this Agreement, and, except as otherwise set forth in this Agreement, that the shares cannot ~~as a nominee or agent, for investment purposes only,~~ be sold unless registered with the United States Securities and ~~not with a view to~~Exchange Commission ("SEC") and qualified by appropriate state securities regulators, or ~~for~~unless Investor otherwise complies with an exemption from such registration and qualification (including, ~~resale~~without limitation, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Shares or any of the components of the Shares. Further, the Investor does not have any contract, undertaking, agreement or arrangement compliance with ~~any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribing~~Rule 144). (b) The Investor has ~~full power~~ adequate means of providing for current needs and ~~authority~~ contingencies, has no need for liquidity in the investment, and is able to ~~enter into this Agreement,~~ bear the ~~execution~~ economic risk of an investment in the shares. Investor represents that Investor is able to bear the economic risk of the investment and ~~delivery~~ at the present time could afford a complete loss of such investment. Investor has reviewed this Agreement and the Disclosure Documents (as defined in Section 2.02(b)) with care. Additionally, Investor has ~~been duly authorized, if applicable,~~ had a full opportunity to inspect the books and ~~this Agreement constitutes a valid and legally binding obligation~~ records of the ~~Investor~~Company and to make any and all inquiries of Company officers and directors regarding the Company and its business as Investor has deemed appropriate. (c) The Investor ~~acknowledges its understanding that the offering and sale~~ is not an "Accredited Investor" as defined in Regulation D of the ~~Shares is intended to be exempt from registration under~~ Act or Investor, either alone or with Investor's professional advisers (who are unaffiliated with, have no equity interest in, and are not compensated by the ~~Securities Act of 1933, as amended (the “Securities Act”) by virtue of Section 4(2)~~ Company or any affiliate or selling agent of the ~~Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”~~Company, directly or indirectly). In furtherance thereof, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such sufficient knowledge and experience in financial and business matters ~~as to be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the~~ that Investor also represents it has not been organized for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and shares offered by the Company ~~or any affiliate or subsidiary thereof~~and of making an informed investment decision with respect thereto and has the capacity to protect Investor's own interests in connection with Investor's proposed investment in the shares. (gd) The Investor ~~represents~~is acquiring the shares solely for the Investor's own account as principal, ~~warrants~~ for investment purposes only and ~~agrees that he~~ not with a view to the resale or distribution thereof, in whole or in part, and no other person or entity has a direct or indirect beneficial interest in such shares. (e) The Investor will not sell or otherwise transfer the ~~Shares~~ shares without registration under the ~~Securities~~ Act or an exemption therefrom and fully understands and agrees that he the Investor must bear the economic risk of ~~his~~ the Investor's purchase for an indefinite period of time because, among other reasons, the ~~Shares~~ shares have not been registered under the ~~Securities~~ Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the ~~Securities~~ Act and under the applicable securities laws of such states or unless an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (hf) ~~No representations or warranties have been made to~~ The Investor is not acquiring the ~~Investor by~~ shares based upon his knowledge of material non-public information about the Company, ~~or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein,~~ and ~~in subscribing for Shares~~ the Investor further avers that he is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as aware of ~~the date of this Agreement and if there should be~~ any material ~~change in such~~ non-public information ~~he will immediately furnish such revised or corrected information to~~ about the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 1 contract

Samples: Securities Purchase and Stock Option Agreement (Red Giant Entertainment, Inc.)

Investor Representations and Warranties. The Investor hereby ~~acknowledges,~~ represents and warrants ~~to, and agrees with, the Company and its affiliates as follows~~that: (a) The Investor acknowledges that the Shares are "restricted securities" (as such term is defined in Rule 144 promulgated under the Act ("Rule 144")), that the Shares will include the restrictive legend set forth in Section 1.03 of this Agreement, and, except as otherwise set forth in this Agreement, that the Shares cannot be sold unless registered with the United States Securities and Exchange Commission ("SEC") and qualified by appropriate state securities regulators, or unless Investor otherwise complies with an exemption from such registration and qualification (including, without limitation, compliance with Rule 144). (b) The Investor has adequate means of providing for current needs and contingencies, has no need for liquidity in the investment, and is able to bear the economic risk of an investment in the Shares. Investor represents that Investor is able to bear the economic risk of the investment and at the present time could afford a complete loss of such investment. Investor has reviewed this Agreement and the Disclosure Documents (as defined in Section 2.02(b)) with care. Additionally, Investor has had a full opportunity to inspect the books and records of the Company and to make any and all inquiries of Company officers and directors regarding the Company and its business as Investor has deemed appropriate. (c) The Investor is an "Accredited Investor" as defined in Regulation D of the Act or Investor, either alone or with Investor's professional advisers who are unaffiliated with, have no equity interest in and are not compensated by the Company or any affiliate or selling agent of the Company, directly or (d) The Investor is acquiring the Shares solely for ~~his or its~~ the Investor's own account as principal, ~~not as a nominee or agent,~~ for investment purposes ~~only,~~ only and not with a view toto the resale or distribution thereof, ~~or for, resale, distribution or fractionalization thereof~~ in whole or in ~~part~~ part, and no other person or entity has a direct or indirect beneficial interest in such Shares or any of the components of the Shares. Further, the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribing. (b) The Investor has full power and authority to enter into this Agreement, the execution and delivery of this Agreement has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the Investor. (c) The Investor acknowledges its understanding that the offering and sale of the Shares is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the ~~Securities~~ Act or an exemption therefrom and fully understands and agrees that he the Investor must bear the economic risk of ~~his~~ the Investor's purchase for an indefinite period of time because, among other reasons, the Shares have not been registered under the ~~Securities~~ Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the ~~Securities~~ Act and under the applicable securities laws of such states or unless an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 1 contract

Samples: Securities Purchase Agreement (Red Giant Entertainment, Inc.)

Investor Representations and Warranties. ~~The~~ By executing and delivering this Agreement, the Investor ~~hereby~~ acknowledges, warrants and represents ~~and warrants to, and agrees with,~~ to the Company ~~and its affiliates~~ as follows: A. The Investor has obtained and reviewed all documents filed by the Company with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (a) all such documents are collectively referred to hereinafter as the “Disclosure Documents”). B. The Investor has been given access to full and complete information regarding the Company and has utilized such access to the Investor’s satisfaction for the purpose of obtaining information in addition to, or verifying information included in, the Disclosure Documents. Particularly, the Investor has been given reasonable opportunity to meet with and/or contact Company representatives for the purpose of asking questions of, and receiving answers from, such representatives concerning the terms and conditions of the offering and to obtain any additional information, to the extent reasonably available, necessary to verify the accuracy of information provided in the Disclosure Documents. C. The Investor is acquiring the Shares for his or its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Shares or any an “accredited investor” pursuant to Rule 501 of the components of the Shares. Further, the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribing. (b) The Investor has full power and authority to enter into this Agreement, the execution and delivery of this Agreement has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the Investor. (c) The Investor acknowledges its understanding that the offering and sale of the Shares is intended to be exempt from registration Regulation D under the Securities Act of 1933, as amended (the “Securities Act”~~) by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”~~). In furtherance thereof, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor ~~does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investment~~has, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein either alone or with the ~~same meaning as given in Rule 501(h)~~ assistance of ~~Regulation D)~~a professional advisor, the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such sufficient knowledge and experience in financial and business matters ~~as to be~~ that the Investor believes himself/herself (or itself) capable of evaluating the merits and risks of the prospective private placement to purchase the Shares, and the suitability of an investment in the Company in light of the Investor’s financial condition and investment needs, and legal, tax and accounting matters. The Investor has relied upon the advice of the Investor’s legal counsel and accountants or other legal and financial advisors with respect to legal, tax and other considerations relating to the purchase of Shares hereunder. The Investor is not relying upon the Company or the Company’s legal counsel with respect to the economic considerations involved in making an investment decision in the Company and the purchase of the Shares. D. The Investor is acquiring the Shares for his or its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares. The Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire to take a pledge of) any of the Shares except in compliance with the Securities Act and applicable state securities laws. E. If an entity, the Investor has not been organized, reorganized or recapitalized specifically for the purpose of investing in the Shares. If The Investor, if other than an individual, ~~the Investor also represents it has~~ was not ~~been~~ organized for the specific purpose of acquiring the Shares, and (ii) this Agreement has been duly authorized by all necessary action on the part of the Investor, has been duly executed by an authorized officer or representative of the Investor, and is a legal, valid and binding obligation of the Investor enforceable in accordance with its terms. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) F. The Investor ~~and~~ understands that his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares ~~on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (~~involves a ~~copy~~ significant degree of ~~which is annexed to this Agreement) the specific details of any and all past~~risk, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic including a risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all total loss of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the CompanyInvestor’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. ~~(l)~~ G. The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is ~~not purchasing the Shares as~~ a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities bona fide resident of the ~~Company during the period commencing from the time that such Investor first received a term sheet from the Company~~ State identified in (or, if an entity, is organized or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations incorporated under the laws ~~described herein~~of) and received the subscription and decided to invest in the Securities in, the particular State set forth in the signature page hereto. ~~(n) The foregoing representations, warranties and agreements shall survive the Closing.~~

Appears in 1 contract

Samples: Stock Purchase Agreement (Navidea Biopharmaceuticals, Inc.)

Investor Representations and Warranties. ~~The~~ To induce GTY to enter into this letter agreement, the Investor hereby ~~acknowledges,~~ represents and warrants to, and agrees with, ~~the Company and its affiliates~~ GTY as follows: (a) The Investor is ~~acquiring the Shares for his or its own account~~ an “accredited investor” as ~~principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof~~ such term is defined in whole or in part and no other person has a direct or indirect beneficial interest in such Shares or any of the components of the Shares. Further, the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribing. (bRule 501(a) The Investor has full power and authority to enter into this Agreement, the execution and delivery of this Agreement has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the Investor. (c) The Investor acknowledges its understanding that the offering and sale of the Shares is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”~~) by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”~~). In furtherance thereof, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor ~~does~~ will acquire the Shares for its own account solely for investment purposes and not ~~have~~ for the account of others or with a view to the distribution or resale of such Shares or any ~~such intention~~interests therein. (iib) The Investor has received and carefully read and understands this letter agreement. The Investor has been furnished with all other materials relating to GTY and the ~~financial ability to bear~~ offering of the ~~economic risk of his investment~~GTY Shares (the “Offering”), has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if ~~none~~any, ~~so state) has acted as~~ which have been requested by the Investor~~’s Investor Representative for purposes of the private placement exemption under the Securities Act~~. ~~If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D)~~Furthermore, the Investor has been ~~advised by his Investor Representative as to the merits and risks of~~ afforded an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information GTY in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investmentOffering. (fc) The Investor acknowledges that: (i) the offer and sale of the GTY Shares has not been and will not be registered under the Securities Act, or the securities laws of any U.S. state or non-U.S. jurisdiction, and that the offer and sale of the GTY Shares is being made in reliance upon federal and state exemptions for transactions not ~~relying~~ involving a public offering; and (ii) the GTY Shares may not be resold or transferred except as permitted by the Securities Act and any applicable U.S. state or non-U.S. securities laws, pursuant to registration or exemption therefrom. (d) The Investor understands that neither the U.S. Securities and Exchange Commission nor any other federal, state or non-U.S. agency has recommended, approved or endorsed the purchase of the GTY Shares as an investment or passed on the ~~Company,~~ accuracy or ~~its affiliates with respect to economic considerations involved~~ adequacy of the information set forth in this ~~investment~~letter agreement or any other documents used in connection with the Offering. The Investor has relied on its own examination of GTY and the ~~advice of~~terms of the Offering, or including the merits and risks involved, and has ~~consulted~~ reviewed the merits and risks of the purchase of the GTY Shares with ~~only those persons~~tax, ~~if any~~legal and investment counsel to the extent deemed advisable by the Investor. (e) The Investor has obtained, ~~named as Investor Representative(s) herein and~~ in the ~~Accredited Investor Questionnaire. Each Investor Representative is capable~~ judgment of ~~evaluating~~ the Investor, sufficient information to evaluate the merits and risks of an investment in GTY. The Investor has sufficient knowledge and experience in financial and business matters to evaluate the ~~Shares~~ merits and risks associated with such investment and to make an informed investment decision with respect thereto. The Investor has not relied and will not rely upon any representations made by, or other information (whether oral or written) furnished by or on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all pastbehalf of, ~~present or future relationships, actual or contemplated, between himself and the Company~~ GTY or any ~~affiliate~~ of its directors, officers, employees, agents, affiliates or ~~subsidiary~~ representatives. (f) The Investor understands that the purchase of the GTY Shares represents a highly speculative investment, which involves a high degree of risk of loss. The Investor cannot expect to be able to liquidate any investment in GTY in the case of an emergency, or perhaps at all. The Investor has adequate means to provide for the Investor’s current cash needs and possible contingencies, and its financial condition is such that it can afford to bear all risks associated with the purchase of the GTY Shares. The Investor has the financial capacity to hold the GTY Shares for an indefinite period of time and can afford to suffer the complete loss thereof. (g) The Investor ~~represents~~confirms that the GTY Shares were not offered to the Investor by any means of general solicitation or general advertising. The Investor, ~~warrants~~ either directly or indirectly through its beneficial owners, has a pre-existing business relationship with GTY. (h) The Investor has all requisite authority (and ~~agrees that he~~ in the case of an individual, the capacity) to enter into this letter agreement and to perform all the obligations required to be performed by the Investor hereunder. The execution and delivery of this letter agreement by the Investor, the consummation of the transactions contemplated hereby, and the performance of the Investor’s obligations under this letter agreement do not and will not ~~sell~~ conflict with, or ~~otherwise transfer the Shares without registration under the Securities Act~~ result in any violation of or ~~an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because~~default under, ~~among other reasons, the Shares have not been registered under the Securities Act or under the securities laws~~ any provision of any ~~state and~~articles or certificate of incorporation or formation, ~~therefore~~charter, ~~cannot be resold~~bylaws, ~~pledged~~limited liability company agreement, ~~assigned~~ operating agreement, partnership agreement or ~~otherwise disposed of unless they are subsequently registered under~~ other governing instrument applicable to the ~~Securities Act and under the applicable securities laws of such states~~ Investor, or ~~an exemption from such registration is available. In particular,~~ any agreement or other instrument to which the Investor is ~~aware that~~ a party or by which the ~~Shares~~ Investor or any of its properties are ~~“restricted securities,” as such term is defined in Rule 144 promulgated under~~ bound, or any U.S. or non-U.S. permit, franchise, judgment, injunction, decree, statute, order, rule or regulation applicable to the ~~Securities Act~~ Investor or the Investor’s business or properties. (~~“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met.~~ i) The Investor ~~also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company~~ acknowledges that GTY is under no obligation to ~~register~~ enter into a transaction with Company, whether on the ~~Shares on his behalf~~ terms set forth in the Merger Agreement or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made described to the Investor by or otherwise. GTY may abandon such transaction at any time or change the ~~Company,~~ terms of such transaction at any time without notice to the Investor or any ~~officer~~liability to the Investor. In addition, ~~employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares~~ the Investor acknowledges that if the Merger Agreement is executed, it will be subject to significant conditions to the Closing and, if those conditions are not ~~relying upon~~ satisfied, the Closing may not occur and, if the Closing does not occur, the Earnout Payment will not be made. The Investor’s obligations in the Series C Subscription Agreement are not subject to any ~~representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission~~ transaction between GTY and the Company~~’s Confidential Private Placement Memorandum dated February 2, 2009~~. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 1 contract

Samples: Subscription Agreement (GTY Technology Holdings Inc.)

Investor Representations and Warranties. The ~~Investor~~ undersigned hereby acknowledges, represents and warrants to, and agrees with, the Company and its affiliates as follows: (a) The ~~Investor~~ undersigned is acquiring the ~~Shares~~ Securities for his ~~or its~~ own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such ~~Shares or any of the components of the Shares~~Securities. Further, the ~~Investor~~ undersigned does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the ~~Shares~~ Securities for which the ~~Investor~~ undersigned is subscribing. (b) The ~~Investor~~ undersigned has full power and authority to enter into this Agreement, the execution and delivery of this Agreement has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the ~~Investor~~undersigned. (c) The ~~Investor~~ undersigned acknowledges ~~its~~ his understanding that the offering and sale of the ~~Shares~~ Securities is intended to be exempt from registration under the Securities Act ~~of 1933, as amended (the “Securities Act”)~~ by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“"Regulation D”"). In furtherance thereof, the ~~Investor~~ undersigned represents and warrants to and agrees with the Company and its affiliates as follows: (i) The ~~Investor~~ undersigned realizes that the basis for the exemption may not be present if, notwithstanding such representations, the ~~Investor~~ undersigned has in mind merely acquiring ~~Shares~~ Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The ~~Investor~~ undersigned does not have any such intention. (ii) The ~~Investor~~ undersigned is an "accredited investor" as that term is defined pursuant to Regulation D promulgated under the Securities Act and has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of ~~Investor~~ Purchaser Representative: if none, ~~so state~~leave blank) has acted as the ~~Investor’s Investor~~ undersigned's ----------------- Purchaser Representative for purposes of the private placement exemption under the Securities Act. If the ~~Investor~~ undersigned has appointed a ~~Investor~~ Purchaser Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the ~~Investor~~ undersigned has been advised by his ~~Investor~~ Purchaser Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the ~~Shares~~ Securities for the ~~Investor~~ undersigned in particular; and (iv) The ~~Investor~~ undersigned (together with his ~~Investor~~ Purchaser Representative(s), if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the ~~Shares~~Securities. If other than an individual, the ~~Investor~~ undersigned also represents it has not been organized for the purpose of acquiring the ~~Shares~~Securities. (d) The information in the Accredited Investor Questionnaire completed and executed by the ~~Investor~~ undersigned is substantially in the form of the Accredited Investor Questionnaire included as an exhibit to the Memorandum (the “"Accredited Investor Questionnaire”") and is accurate and true in all respects and the ~~Investor~~ undersigned is an “"accredited investor,” " as that term is defined in Rule 501 of Regulation D. (e) The ~~Investor~~ undersigned and his ~~Investor~~ Purchaser Representative, if any~~, have~~: (i) ~~had access~~ Have been furnished with the Memorandum, including all exhibits thereto and any documents which may have been made available upon request for a reasonable time prior to the date hereof and the undersigned or his Purchaser Representative(s) have carefully ~~reviewed~~ read the ~~Company’s SEC Documents~~ Memorandum and ~~other public filings,~~ understands and have evaluated the ~~Schedules~~ risks set forth under "Risk Factors" and ~~Exhibits to this Agreement~~ the considerations described in the Memorandum and ~~has had~~ have relied solely (except as indicated in subsections (ii) and (iii) below) on the information contained in the Memorandum (including all exhibits thereto); (ii) Have been provided an opportunity for a reasonable ~~period of~~ time prior to the date hereof to obtain additional information concerning the offering of the ~~Shares~~Securities, the ~~Company,~~ Company and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) Have been given the opportunity for a reasonable ~~period of~~ time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the ~~Shares~~ Securities and other matters pertaining to this investment, and have been given the opportunity for a reasonable ~~period of~~ time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information contained in the Memorandum or that which was otherwise provided in order for him to evaluate the merits and risks of purchase of the ~~Shares~~ Securities to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) Have not been furnished with any oral representation or oral information in connection with the offering of the ~~Shares~~ Securities which is not contained ~~herein~~in the Memorandum; and (v) Have determined that the ~~Shares~~ Securities are a suitable investment for the ~~Investor~~ undersigned and that at this time the ~~Investor~~ undersigned could bear a complete loss of such investment. (f) The ~~Investor~~ undersigned is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The ~~Investor~~ Undersigned has relied on the advice of, or has consulted with only those persons, if any, named as ~~Investor~~ Purchaser Representative(s) herein and in the Accredited Investor ~~Questionnaire~~Questionnaire and such other advisors and counsel as the undersigned may have chosen. ~~Each Investor~~ The undersigned and each Purchaser Representative is capable of evaluating the merits and risks of an investment in the ~~Shares~~ Securities on the terms and conditions set forth ~~herein~~ in the Memorandum and each ~~Investor~~ Purchaser Representative has disclosed to the ~~Investor~~ undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The ~~Investor~~ undersigned represents, warrants and agrees that he will not sell or otherwise transfer the ~~Shares~~ Securities without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the ~~Shares~~ Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the ~~Investor~~ undersigned is aware that the ~~Shares~~ Securities are “"restricted securities,” " as such term is defined in Rule 144 promulgated under the Securities Act (“"Rule 144”"), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The ~~Investor~~ undersigned also understands that, except as otherwise provided herein and in the certificates for the ~~Shares~~Warrants, the Company is under no obligation to register the ~~Shares~~ Securities on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The ~~Investor~~ undersigned further understands that sales or transfers of the ~~Shares~~ Securities are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the ~~Investor~~ undersigned by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained ~~herein~~herein and in the Memorandum, and in subscribing for ~~Shares~~ Securities the ~~Investor~~ undersigned is not relying upon any representations other than those contained ~~herein. Investor has carefully reviewed filings made by~~ herein or in the ~~Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009~~Memorandum. (i) Any information which the ~~Investor~~ undersigned has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The ~~Investor~~ undersigned understands and agrees that the certificates for the ~~Shares~~ Securities shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a the registration ~~statement that has been declared effective~~statement; or (ii) in the opinion of counsel for the Company or other counsel reasonably acceptable to the Company, such securities may be sold without registration under the Securities Act as well as any applicable “"Blue Sky” " or state securities laws~~. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend~~: “"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “"SECURITIES ACT”"), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “"BLUE SKY” " OR SIMILAR SECURITIES LAW.”" (k) The ~~Investor~~ undersigned understands that an investment in the ~~Shares~~ Securities is a speculative investment which involves a high degree of risk and could result in the ~~potential~~ loss of his entire investment. (l) The ~~Investor’s~~ undersigned's overall commitment to investments which are not readily marketable is not disproportionate to the ~~Investor’s~~ undersigned's net worth, and an investment in the ~~Shares~~ Securities will not cause such overall commitment to become excessive. (m) ~~Investor~~ The undersigned understands that no federal or state agency has made any finding or determination regarding the fairness of the offering of the Securities or any recommendation or endorsement of the offering of the Securities. (n) The undersigned is not ~~purchasing~~ subscribing for the ~~Shares~~ Securities as a result of or subsequent to any advertisement, article, notice or other communication ~~regarding the Securities~~ published in any newspaper, ~~magazine~~ magazine, or similar media or broadcast over television or ~~radio or presented at~~ radio, any seminar or meeting, or any ~~other general~~ solicitation of a subscription by a person or ~~general advertisement~~entity not previously known to the undersigned in connection with investments in securities generally. (no) ~~Other than the transaction contemplated hereunder, such Investor~~ The undersigned has not ~~directly~~ engaged any broker or ~~indirectly~~other person or entity that is entitled to a commission, fee or other remuneration as a result of the execution, delivery or performance of this Agreement or any other required documents. (p) Neither the execution, delivery nor ~~has~~ performance of this Agreement or any other required documents by the undersigned violates or conflicts with or creates (with or without the giving of notice or the lapse of time, or both) a default under, or a lien or encumbrance upon, any of the undersigned's assets or properties pursuant to or requires the consent, approval, or order of any government or governmental agency or other person ~~acting~~ or entity under (x) any note, indenture, lease, license or other material agreement to which the undersigned is a party or by which it or any of its assets or properties is bound or (y) any statute, law, rule, regulation or court decree binding upon or applicable to the undersigned or its assets or properties. If the undersigned is not a person, the execution and delivery by the undersigned of this Agreement or any other required documents have been duly authorized by all necessary corporate or other action on behalf of the undersigned and such investment will not constitute a breach or ~~pursuant to any understanding with such Investor~~violation of, ~~executed any disposition~~or default under, ~~including Short Sales~~ the charter or by-laws or equivalent governing documents of the undersigned. (~~defined below), in~~ q) The undersigned has no knowledge that the ~~securities~~ statements of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, contained in the ~~case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets~~ Memorandum are not true and ~~the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets~~correct in all material respects. The undersigned has consulted its own financial, ~~the representation set forth above shall only apply~~ legal and tax advisors with respect to the ~~portion~~ economic, legal and tax consequences of ~~assets managed by~~ an investment in the ~~portfolio manager that made~~ Securities and has not relied on the ~~investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to~~ Memorandum, this Agreement, the Company or the Company's officers, directors, affiliates or professional advisors for advice as to such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock)consequences. (mr) ~~Investor hereby~~ The undersigned, if an individual, is at least 21 years of age and has full legal capacity to enter into and perform his obligations under this Agreement and any other required documents. (s) THE UNDERSIGNED HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT, FRAUD OR OTHERWISE) IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND ANY OTHER REQUIRED DOCUMENTS OR THE UNDERSIGNED'S PURCHASE OF THE SECURITIES. (t) The undersigned acknowledges and agrees that all information, written and oral, concerning the Company ~~seeks~~ furnished from time to ~~comply with all applicable laws concerning money laundering~~ time to the undersigned, including this Agreement and ~~related activities~~any other required documents, is provided on a confidential basis. ~~In furtherance of those efforts, Investor hereby represents, warrants~~ The undersigned further acknowledges and agrees ~~that~~that it shall not disclose such information, other than where such disclosure is required by law or where such information is already available to the public other than as a result of disclosure by the undersigned, to anyone other than the ~~best~~ undersigned's officers, directors, employees, legal counsel, accountants, or authorized agents or advisors, who shall agree in writing to be bound by the provisions of ~~Investor’s knowledge based upon appropriate diligence and investigation:~~this paragraph. (iu) ~~none~~ The undersigned consents to the placing of legends and stop- transfer orders with the transfer agent of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect Company's securities with respect to ~~Investor,~~ any of such securities registered in the name of the undersigned or ~~if otherwise required~~ beneficially owned by ~~applicable law or regulation related to money laundering and similar activities,~~ the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; andundersigned. (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the execution and delivery of this Agreement and each Closing.

Appears in 1 contract

Samples: Subscription Agreement (Boston Life Sciences Inc /De)

Investor Representations and Warranties. The Investor ~~hereby acknowledges,~~ represents and warrants ~~to, and agrees with, the Company and its affiliates as follows~~to Issuer that: (a) If the Investor is not an individual, the Investor is duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, except where the failure to be so duly organized, validly existing or in good standing would not reasonably be expected to result in a material adverse effect on the Investor’s ability to perform its obligations hereunder. (b) If the Investor is not an individual, the execution and performance by the Investor of this Subscription Agreement, and the consummation of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of the Investor. The Investor has the power and authority to execute, deliver and perform its obligations under this Subscription Agreement and this Subscription Agreement has been duly executed and delivered by the Investor and is legal, valid, binding and enforceable upon and against the Investor (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity). (c) The Investor is, and was at the time the Investor was offered the Shares, an accredited investor (as such term is defined in Rule 501(a) of Regulation D under the Securities Act). The Investor acknowledges that the Investor has completed the Eligibility Representations of the Investor contained in Schedule A and that the information contained therein is complete and accurate as of the date thereof and is hereby affirmed as of the date hereof. Any information that has been furnished or that will be furnished by the Investor to evidence its status as an accredited investor is accurate and complete, and does not contain any misrepresentation or material omission. (d) The Investor is acquiring the Shares for ~~his or~~ its own ~~account as principal, not as a nominee or agent~~account, for investment purposes ~~only,~~ only and not with a view to, or ~~for~~the resale in connection with, ~~resale,~~ any distribution thereof that would not otherwise comply with the Securities Act. (e) The Investor understands that (i) the Shares have not been registered under the Securities Act or ~~fractionalization~~ the securities laws of any state in the United States or any other jurisdiction and that the Shares are being issued and sold by Issuer in transactions exempt from the registration requirements of the Securities Act by reason of specific exemptions under the provisions thereof ~~in whole or~~ which depend in part upon the investment intent of the Investor and no of the other ~~person has a direct or indirect beneficial interest~~ representations made by the Investor in ~~such Shares~~ this Subscription Agreement and (ii) all or any of the components of the Shares. Further, the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any part of the Shares ~~for which the Investor is subscribing. (b) The Investor has full power and authority~~ may not be offered or sold except pursuant to enter into this Agreement, the execution and delivery of this Agreement has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the Investor. (c) The Investor acknowledges its understanding that the offering and sale of the Shares is intended effective registration statements or pursuant to ~~be exempt~~ applicable exemptions from registration under the Securities Act ~~of 1933~~and in compliance with applicable state laws. (f) The Investor acknowledges and agrees that the Shares will not be immediately eligible for offer, ~~as amended (~~resale, transfer, pledge, mortgage or disposition pursuant to Rule 144 promulgated under the “Securities Act”. The Investor agrees: (A) ~~by virtue~~ that the Investor will not sell, assign, pledge, give, transfer, or otherwise dispose of ~~Section 4(2)~~ the Shares or any interest therein, or make any offer or attempt to do any of the foregoing, unless the transaction is registered under the Securities Act and complies with the requirements of all applicable state securities laws, or the transaction is exempt from the registration provisions of the Securities Act and all applicable requirements of state securities laws; (B) that the ~~provisions of Regulation D promulgated thereunder~~ certificates representing the Shares will bear a legend making reference to the foregoing restrictions; and (~~“Regulation D”). In furtherance thereof,~~ C) that the ~~Investor represents and warrants to and agrees with the Company~~ Issuer and its affiliates ~~as follows: (i) The Investor realizes that the basis for the exemption may~~ shall not be ~~present if~~required to give effect to any purported transfer of such Shares, ~~notwithstanding such representations,~~ except upon compliance with the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intentionforegoing restrictions. (iig) The Investor has ~~the financial ability to bear the economic risk of his investment~~such knowledge, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if noneskill, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge sophistication and experience in business, financial and ~~business~~ investment matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares. ~~If other than an individual~~With the assistance of the Investor’s own professional advisors, to the extent that the Investor has deemed appropriate, the Investor ~~also represents it~~ has not been organized for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representativemade its own legal, ~~if any~~tax, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Companyaccounting, and ~~all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period~~ financial evaluation of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on and the ~~terms~~ consequences of this Subscription Agreement. The Investor has considered the suitability of the Shares as an investment in light of its own circumstances and ~~conditions set forth herein~~ financial condition and ~~each Investor Representative has disclosed to~~ the Investor is able to bear the risks associated with an investment in ~~writing (~~the Shares, and it is authorized to invest in the Shares and has determined that it is a ~~copy of which is annexed to this Agreement)~~ suitable investment for the ~~specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g)~~ Investor. The Investor ~~represents, warrants and agrees~~ understands that ~~he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he~~ it must bear the economic risk of ~~his purchase because, among other reasons,~~ its investment in the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act indefinitely and ~~under the applicable securities laws~~ is able to bear such risk and is able to afford a complete loss of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreementinvestment. (h) ~~No representations or warranties have been made to the~~ The Investor ~~by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor~~ represents that it is not relying ~~upon~~ on (and will not at any ~~representations other than those contained herein. Investor has carefully reviewed filings made by~~ time rely on) any communication (written or oral) of the ~~Company with~~ Issuer, as investment advice or as a recommendation to purchase the ~~U.S. Securities~~ Shares, it being understood that information and ~~Exchange Commission~~ explanations related to the terms and conditions of the Shares and the ~~Company’s Confidential Private Placement Memorandum dated February 2~~other transaction documents shall not be considered investment advice or a recommendation to purchase the Shares. The Investor confirms that the Issuer has not (A) given any guarantee or representation as to the potential success, ~~2009~~return, effect or benefit (either legal, regulatory, tax, financial, accounting or otherwise) of an investment in the Shares or (B) made any representation to the undersigned regarding the legality of an investment in the Shares under applicable legal investment or similar laws or regulations. In deciding to purchase the Shares, the undersigned is not relying on the advice or recommendations of the Issuer and the undersigned has made its own independent decision that the investment in the Shares is suitable and appropriate for the undersigned. (i) ~~Any information which~~ The Investor acknowledges that it has reviewed all materials the Investor ~~has heretofore furnished to~~ deemed necessary for the ~~Company~~ purpose of making an informed investment decision with respect to ~~his financial position~~ the Shares, including information regarding Issuer and ~~business experience is correct~~ Intuitive Machines and ~~complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company~~its subsidiaries. (j) The Investor understands ~~and agrees~~ that no federal or state agency has passed upon the ~~certificates for~~ merits or risks of an investment in the Shares ~~shall bear~~ or made any finding or determination concerning the ~~following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed~~ fairness or advisability of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAWinvestment.” (k) The Investor ~~understands~~ acknowledges that ~~an investment in~~ neither the Issuer nor any other person offered to sell the Shares ~~is a speculative investment which involves a high degree~~ to it by means of ~~risk and the potential loss~~ any form of ~~his entire investment.~~ general solicitation or advertising, including but not limited to: (lA) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication ~~regarding the Securities~~ published in any newspaper, magazine or similar media or broadcast over television or radio or ~~presented at~~ (B) any seminar or meeting whose attendees were invited by any ~~other~~ general solicitation or general ~~advertisement~~advertising. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 1 contract

Samples: Subscription Agreement (Intuitive Machines, Inc.)

Investor Representations and Warranties. The Investor ~~hereby acknowledges,~~ represents and warrants ~~to, and agrees with, the Company and its affiliates as follows~~to Issuer that: (a) If the Investor is not an individual, the Investor is duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, except where the failure to be so duly organized, validly existing or in good standing would not reasonably be expected to result in a material adverse effect on the Investor’s ability to perform its obligations hereunder. (b) If the Investor is not an individual, the execution and performance by the Investor of this Subscription Agreement, and the consummation of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of the Investor. The Investor has the power and authority to execute, deliver and perform its obligations under this Subscription Agreement and this Subscription Agreement has been duly executed and delivered by the Investor and is legal, valid, binding and enforceable upon and against the Investor (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity). (c) The Investor is, and was at the time the Investor was offered the Common Units, an accredited investor (as such term is defined in Rule 501(a) of Regulation D under the Securities Act). The Investor acknowledges that the Investor has completed the Eligibility Representations of the Investor contained in Schedule A and that the information contained therein is complete and accurate as of the date thereof and is hereby affirmed as of the date hereof. Any information that has been furnished or that will be furnished by the Investor to evidence its status as an accredited investor is accurate and complete, and does not contain any misrepresentation or material omission. (d) The Investor is acquiring the ~~Shares~~ Common Units for ~~his or~~ its own ~~account as principal, not as a nominee or agent~~account, for investment purposes ~~only,~~ only and not with a view to, or ~~for~~the resale in connection with, ~~resale,~~ any distribution ~~or fractionalization~~ thereof ~~in whole or in part and no other person has a direct or indirect beneficial interest in such Shares or any of~~ that would not otherwise comply with the components of the Shares. Further, the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribingSecurities Act. (be) The Investor ~~has full power~~ understands that (i) the Common Units have not been registered under the Securities Act or the securities laws of any state in the United States or any other jurisdiction and ~~authority to enter into this Agreement,~~ that the ~~execution~~ Common Units are being issued and ~~delivery of this Agreement has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation~~ sold by Issuer in transactions exempt from the registration requirements of the ~~Investor. (c) The Investor acknowledges its understanding that~~ Securities Act by reason of specific exemptions under the ~~offering and sale~~ provisions thereof which depend in part upon the investment intent of the ~~Shares is intended~~ Investor and of the other representations made by the Investor in this Subscription Agreement and (ii) all or any part of the Common Units may not be offered or sold except pursuant to ~~be exempt~~ effective registration statements or pursuant to applicable exemptions from registration under the Securities Act ~~of 1933~~and in compliance with applicable state laws. (f) The Investor acknowledges and agrees that the Common Units will not be immediately eligible for offer, ~~as amended (~~resale, transfer, pledge, mortgage or disposition pursuant to Rule 144 promulgated under the “Securities Act”. The Investor agrees: (A) ~~by virtue~~ that the Investor will not sell, assign, pledge, give, transfer, or otherwise dispose of ~~Section 4(2)~~ the Common Units or any interest therein, or make any offer or attempt to do any of the foregoing, unless the transaction is registered under the Securities Act and complies with the requirements of all applicable state securities laws, or the transaction is exempt from the registration provisions of the Securities Act and all applicable requirements of state securities laws; (B) that the ~~provisions of Regulation D promulgated thereunder~~ certificates representing the Common Units will bear a legend making reference to the foregoing restrictions; and (~~“Regulation D”). In furtherance thereof,~~ C) that the ~~Investor represents and warrants to and agrees with the Company~~ Issuer and its affiliates ~~as follows: (i) The Investor realizes that the basis for the exemption may~~ shall not be ~~present if~~required to give effect to any purported transfer of such Common Units, ~~notwithstanding such representations,~~ except upon compliance with the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intentionforegoing restrictions. (iig) The Investor has ~~the financial ability to bear the economic risk of his investment~~such knowledge, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if noneskill, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge sophistication and experience in business, financial and ~~business~~ investment matters so as to be capable of evaluating the merits and risks of the prospective investment in the ~~Shares~~Common Units. ~~If other than an individual~~With the assistance of the Investor’s own professional advisors, to the extent that the Investor has deemed appropriate, the Investor ~~also represents it~~ has not been organized for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representativemade its own legal, ~~if any~~tax, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Companyaccounting, and ~~all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period~~ financial evaluation of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of ~~purchase~~ an investment in the Common Units and the consequences of this Subscription Agreement. The Investor has considered the suitability of the ~~Shares~~ Common Units as an investment in light of its own circumstances and financial condition and the Investor is able to bear the ~~extent~~ risks associated with an investment in the ~~Company possesses such information or can acquire~~ Common Units, and it ~~without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information~~ is authorized to invest in ~~connection with~~ the ~~offering of the Shares which is not contained herein; and (v)~~ Common Units and has determined that ~~the Shares are~~ it is a suitable investment for the Investor. The Investor understands that it must bear the economic risk of its investment in the Common Units indefinitely and ~~that at this time the Investor could~~ is able to bear such risk and is able to afford a complete loss of such investment. (fh) The Investor represents that it is not relying on (and will not at any time rely on) any communication (written or oral) of the Issuer, as investment advice or as a recommendation to purchase the Common Units, it being understood that information and explanations related to the terms and conditions of the Common Units and the other transaction documents shall not be considered investment advice or a recommendation to purchase the Common Units. The Investor confirms that the Issuer has not (A) given any guarantee or representation as to the potential success, return, effect or benefit (either legal, regulatory, tax, financial, accounting or otherwise) of an investment in the Common Units or (B) made any representation to the undersigned regarding the legality of an investment in the Common Units under applicable legal investment or similar laws or regulations. In deciding to purchase the Common Units, the undersigned is not relying on the ~~Company,~~ advice or recommendations of the Issuer and the undersigned has made its ~~affiliates with respect to economic considerations involved in this investment. The Investor has relied on~~ own independent decision that the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the ~~Shares on the terms~~ Common Units is suitable and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates appropriate for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009undersigned. (i) ~~Any information which~~ The Investor acknowledges that it has reviewed all materials the Investor ~~has heretofore furnished to~~ deemed necessary for the ~~Company~~ purpose of making an informed investment decision with respect to ~~his financial position~~ the Common Units, including information regarding Issuer and ~~business experience is correct~~ Intuitive Machines and ~~complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company~~its subsidiaries. (j) The Investor understands ~~and agrees~~ that no federal or state agency has passed upon the ~~certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed~~ merits or risks of ~~in accordance with a registration statement that has been declared effective; or (ii)~~ an investment in the ~~opinion~~ Common Units or made any finding or determination concerning the fairness or advisability of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAWinvestment.” (k) The Investor ~~understands~~ acknowledges that ~~an investment in~~ neither the ~~Shares is a speculative investment which involves a high degree~~ Issuer nor any other person offered to sell the Common Units to it by means of ~~risk and the potential loss~~ any form of ~~his entire investment.~~ general solicitation or advertising, including but not limited to: (lA) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication ~~regarding the Securities~~ published in any newspaper, magazine or similar media or broadcast over television or radio or ~~presented at~~ (B) any seminar or meeting whose attendees were invited by any ~~other~~ general solicitation or general ~~advertisement~~advertising. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 1 contract

Samples: Subscription Agreement (Intuitive Machines, Inc.)

Investor Representations and Warranties. ~~The~~ Each Investor hereby ~~acknowledges,~~ represents and warrants to, and ~~agrees~~ covenants with, the Company ~~and its affiliates~~ as follows: (a) The Investor ~~is acquiring the Shares for his or its own account as principal, not as a nominee or agent, for investment purposes only~~represents and warrants to, and ~~not~~ covenants with, the Company that (i) the Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with ~~a view~~ respect to, ~~or for, resale, distribution or fractionalization thereof~~ investments in ~~whole or~~ shares presenting an investment decision like that involved in ~~part and no other person has a direct or indirect beneficial interest in such Shares or any of~~ the ~~components~~ purchase of the Shares~~. Further~~, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares, (ii) the Investor agrees to promptly provide all information requested by the Company in connection with the preparation of the Prospectus Supplement and all such information shall be true and correct as of the date hereof, the ~~Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any~~ date of the Prospectus Supplement and as of the Closing Date and (iii) the Investor, in connection with its decision to purchase the of Shares ~~for which~~ pursuant to this Agreement, relied only upon any or all of the following: the Registration Statement, the Prospectus, the Prospectus Supplement, the Statutory Prospectus, and the Company’s regular reports on Forms 10-K, 10-Q and 8-K as filed by the Company with the Commission provided to the Investor ~~is subscribing~~and the representations and warranties of the Company contained herein. (b) The Investor ~~has full power~~ acknowledges, represents and ~~authority to enter into this Agreement, the execution and delivery of this Agreement~~ agrees that no action has been ~~duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation~~ or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the ~~Investor~~Shares, or possession or distribution of offering materials in connection with the issue of the Shares in any jurisdiction outside the United States where action for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense. (c) The Investor acknowledges its understanding that the offering and sale of the Shares is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the Investor further represents and warrants to to, and ~~agrees with~~ covenants with, the Company ~~and its affiliates as follows:~~ that (ia) ~~The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations,~~ the Investor has ~~in mind merely acquiring Shares for a fixed or determinable period in~~ full right, power, authority and capacity to enter into this Agreement and to consummate the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies transactions contemplated hereby and has ~~no need for liquidity with respect~~ taken all necessary action to ~~his investment in~~ authorize the ~~Company;~~ execution, delivery and performance of this Agreement, and (~~iii~~b) ~~(insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes~~ this Agreement constitutes a valid and binding obligation of the ~~private placement exemption under the Securities Act. If the~~ Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for enforceable against the Investor in ~~particular; and~~ accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (ivregardless of whether such enforceability is considered in a proceeding in equity or at law) ~~The Investor (together with his Investor Representative(s), if any) has such knowledge~~ and ~~experience in financial and business matters~~ except as to certain indemnification obligations may be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the Shareslegally unenforceable. (d) The ~~information~~ Investor understands that nothing in ~~the Accredited Investor Questionnaire completed and executed by~~ this Agreement or any other materials presented to the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the ~~offering~~ purchase and sale of the Shares ~~which is not contained herein; and (v) determined that the Shares are a suitable~~ constitutes legal, tax or investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investmentadvice. The Investor has ~~relied on the advice of~~consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or ~~has consulted~~ appropriate in connection with ~~only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable~~ its purchase of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereofShares. (ge) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, ~~except as otherwise provided herein and in~~ since the ~~certificates for~~ date that is the ~~Shares, the Company is under no obligation~~ tenth (10th) trading day prior to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this ~~Agreement and if there should be~~ Agreement, it has not engaged in any ~~material change in such information he will immediately furnish such revised or corrected information to~~ short selling of the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; ’s securities, or ~~(ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as~~ established or increased any ~~applicable~~ “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short salesput equivalent position” as defined in Rule ~~200 of Regulation SHO~~ 16(a)-1(h) under the Securities Exchange Act ~~(but shall not be deemed to include the location and/or reservation~~ of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect 1934 with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company~~, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein~~’s securities. ~~(n) The foregoing representations, warranties and agreements shall survive the Closing.~~

Appears in 1 contract

Samples: Stock Purchase Agreement (Seattle Genetics Inc /Wa)

Investor Representations and Warranties. 6.1 The Investor ~~hereby acknowledges,~~ represents and warrants ~~to, and agrees with,~~ to the Company ~~and its affiliates as follows~~that: (a) The Investor ~~is acquiring the Shares for his or~~ has full corporate power and authority to exercise its ~~own account as principal, not as a nominee or agent, for investment purposes only~~rights and to perform its obligations under this agreement, and ~~not with a view to,~~ all corporate and other action required to authorise its execution of this agreement and the performance of its obligations there under has been duly taken. The Investor has been duly formed or ~~for, resale, distribution~~ incorporated and is validly existing and is in good standing under the laws of its jurisdiction of formation or ~~fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest~~ incorporation (to the extent such concept exists in such Shares or any of the components of the Shares. Further, the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third personjurisdiction), with ~~respect~~ power and authority to ~~any of the Shares for which the Investor is subscribing~~enter into, deliver and perform its obligations under this agreement. (b) The ~~Investor has full power~~ execution, delivery and ~~authority to enter into this Agreement, the execution and delivery~~ performance of this ~~Agreement has been duly authorized~~agreement will not: (i) contravene any law, ~~if applicable~~regulation, ~~and this Agreement constitutes~~ judgment or order to which the Investor is subject; (ii) result in any actual or potential breach of or default under any obligation agreement, instrument or consent to which the Investor is a ~~valid and legally binding obligation~~ party; or (iii) contravene any provision of ~~the Investor~~its articles of association. (c) ~~The Investor acknowledges its understanding that~~ At the offering and sale of the Shares is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereofClosing Date, the Investor ~~represents and warrants~~ will have sufficiently available funds to ~~and agrees with the Company and~~ satisfy its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption obligations under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the Sharesthis agreement. (d) The ~~information in the Accredited Investor Questionnaire completed and executed by the~~ Investor is ~~substantially~~ either a professional client or an eligible counterparty within the meanings of item 14 or 73 of article 4 of Act, no. 115/2021, on markets in ~~the form of the Accredited Investor Questionnaire~~ financial instruments (~~the~~ Icelandic: “~~Accredited Investor Questionnaire~~fagfjárfestir” or “viðurkenndur gagnaðili”~~) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D.~~). (e) The Investor ~~and his Investor Representative, if any, have: (i) had access to and carefully reviewed~~ is acquiring the ~~Company’s SEC Documents and other public filings,~~ Sale Shares for its own account in the ~~Schedules and Exhibits to this Agreement~~ ordinary course of its business and has ~~had on opportunity for a reasonable period of time prior~~ no direct or indirect arrangements or understandings with any other persons to distribute or regarding the ~~date hereof to obtain additional information concerning the offering~~ distribution of the Sale Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) The Investor acknowledges and agrees that no offering document, prospectus or admission document has been or will be prepared in connection with the sale of the Sale Shares, nor is one required under the Prospectus Regulation, and the Investor has not ~~relying~~ received and will not receive a prospectus, admission document or other offering document in connection with the sale of the Sale Shares. Also, the Investor confirms that it has carefully read and understood and is solely basing its purchase of the Sale Shares on ~~the Company, or its affiliates with respect to economic considerations involved in this investment.~~ publicly available information. (g) The Investor has ~~relied on~~ the ~~advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein~~ requisite knowledge and ~~in the Accredited Investor Questionnaire. Each Investor Representative is~~ experience to be capable of evaluating the merits and risks of an investment in the Sale Shares ~~on the terms~~ and ~~conditions set forth herein and each Investor Representative has disclosed to~~ that the Investor is capable of protecting its interests in ~~writing (~~connection with this agreement, and if not, that it has sought expertise advice from a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereofrecognized third party. (gh) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is ~~under no obligation~~ authorized to ~~register the Shares on his behalf or to assist him~~ accept purchase offers from New Investors in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor such amounts as determined by the Company, ~~or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and~~ acting in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009its sole discretion. (i) ~~Any information~~ The Investor, each of the funds managed by or affiliated with the Investor for which the Investor ~~has heretofore furnished~~ is acting as nominee, as applicable, or any assignee of the Investor (i) is a resident of Iceland; (ii) is not a “U.S. person” (as defined in Regulation S); (iii) was outside of the United States at the time if first expressed an interest in acquiring Shares and is currently outside of the United States; and (iv) is not an affiliate of the Company (as defined in Rule 144 under the Securities Act). The private placement by the Company to sell the Sale Shares to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information Investor was directed to the ~~Company~~Investor in Iceland. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed This agreement is a result of a private placement made in accordance with ~~a registration statement that has been declared effective; or (ii) in~~ the ~~opinion~~ local laws and customary practices and documentation of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAWIceland.” (k) The Investor ~~understands that an investment in~~ does not presently intend to sell or resell the Sale Shares ~~is a speculative investment which involves a high degree of risk and the potential loss of his entire investment~~outside Iceland. (l) The ~~Investor’s overall commitment~~ Investor acknowledges and agrees that it has been advised to ~~investments which are not readily marketable is not disproportionate~~ consult legal counsel and tax and accounting advisors prior to making any offer, resale, transfer, pledge or disposition of any of the ~~Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive~~Sale Shares. (m) ~~Investor is~~ The Investor’s acquisition of and holding of the Sale Shares will not ~~purchasing~~ constitute or result in a non-exempt prohibited transaction under Section 406 of the ~~Shares~~ Employee Retirement Income Security Act of 1974, as ~~a result~~ amended, Section 4975 of ~~any advertisement~~the Internal Revenue Code of 1986, ~~article~~as amended, ~~notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar~~ or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States similar law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The ~~foregoing~~ Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, other than the representations and warranties contained in Clause 5 of this agreement, in making its investment or decision to invest in the Sale Shares. (o) Alone, or together with any professional advisor(s), the Investor has adequately analysed and fully considered the risks of an investment in the Sale Shares and determined that the Sale Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment. The Investor acknowledges specifically that a possibility of total loss exists. (p) The Investor acknowledges and agrees that there have been no representations, ~~warranties~~ warranties, covenants, financial advice or agreements made to the Investor by or on behalf of the Company, expressly or by implication, in connection with Investor’s purchase of the Sale Shares or any other factors which may determine or otherwise affect the price of the aforementioned, other than those expressly set forth in this agreement. (q) The Investor has placed no reliance on written or oral statements made (directly or indirectly) by the Company, or their respective affiliates, officers, directors, agents, employees or its advisers, and ~~agreements shall survive~~ has made such due diligence investigation into the ~~Closing~~Sale Shares and/or the Company and its business as the Investor has deemed appropriate.

Appears in 1 contract

Samples: Purchase Agreement (Alvotech)

Investor Representations and Warranties. ~~The~~ Each Investor hereby ~~acknowledges,~~ represents and warrants to, and ~~agrees~~ covenants with, the Company ~~and its affiliates~~ as follows: (a) The Investor ~~is acquiring the Shares for his or its own account as principal, not as a nominee or agent, for investment purposes only~~represents and warrants to, and ~~not~~ covenants with, the Company that (i) the Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with ~~a view~~ respect to, ~~or for, resale, distribution or fractionalization thereof~~ investments in ~~whole or~~ shares presenting an investment decision like that involved in ~~part and no other person has a direct or indirect beneficial interest in such Shares or any of~~ the ~~components~~ purchase of the Shares~~. Further~~, including investments in securities issued by the ~~Investor does not have any contract~~Company and investments in comparable companies, ~~undertaking~~has reviewed the SEC Reports, ~~agreement~~ has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares and has been afforded the opportunity to obtain such additional information that the Company possesses or ~~arrangement with any person~~ can acquire without unreasonable effort or expense that is necessary to ~~sell, transfer or grant participations to such person or to any third person,~~ make an informed investment decision with respect to ~~any~~ the investment, and (ii) the Investor agrees to promptly provide all information reasonably requested by the Company in connection with the preparation of the ~~Shares for which~~ Proxy Statement and all such information shall be true and correct as of the ~~Investor is subscribing~~date thereof in all material respects. (b) The Investor ~~has full power~~ acknowledges, represents and ~~authority to enter into this Agreement, the execution and delivery of this Agreement~~ agrees that no action has been ~~duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation~~ or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the ~~Investor~~Shares, or possession or distribution of offering materials in connection with the issue of the Shares in any jurisdiction outside the United States where action for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense. (c) The Investor ~~acknowledges its understanding~~ understands that the offering and sale of the Shares is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act and is acquiring the Shares in the ordinary course of business for its own account and not with a view towards, or ~~under~~ for resale in connection with, the ~~securities laws of any state and~~public sale or distribution thereof, ~~therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently~~ except pursuant to sales registered under the Securities Act ~~and~~ or under ~~the applicable securities laws of such states or~~ an exemption from such registration ~~is available. In particular~~and in compliance with applicable laws, rules and regulations, and the Investor does not have a present arrangement to effect any distribution of the Shares to or through any person or entity. (d) The Investor further represents and warrants to, and covenants with, the Company that (a) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is ~~aware that~~ considered in a proceeding in equity or at law) and except as certain indemnification obligations may be legally unenforceable. (e) At the ~~Shares are~~ time the Investor was offered the Shares, it was, and at the date hereof and at the Closing Date it is or will be, as applicable, an “~~restricted securities,~~accredited investor” as ~~such term is~~ defined in Rule ~~144 promulgated~~ 501(a) under the Securities ~~Act~~ Act. (~~“Rule 144”), and they may not be sold pursuant to Rule 144 unless all~~ f) The Investor understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the ~~conditions~~ Shares or the fairness or suitability of ~~Rule 144 are met~~the investment in the Common Stock nor have such authorities passed upon or endorsed the merits of the offering of the Shares. (g) The Investor understands that nothing in this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor ~~also understands that~~has consulted such legal, ~~except~~ tax and investment advisors as ~~otherwise provided herein and~~ it, in ~~the certificates for the~~ its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as of the date of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j) The Investor understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, since the date that is the tenth (10th) trading day prior to the ~~best~~ date of ~~Investor’s knowledge based upon appropriate diligence and investigation: (i) none~~ this Agreement, it has not engaged in any short selling of the ~~cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from~~Company’s securities, or ~~related to, an activity that is deemed criminal~~ established or increased any “put equivalent position” as defined in Rule 16(a)-1(h) under ~~United States law; (ii) no contribution or payment by Investor to~~ the ~~Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control~~ Securities Exchange Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect 1934 with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company~~, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein~~’s securities. ~~(n) The foregoing representations, warranties and agreements shall survive the Closing.~~

Appears in 1 contract

Samples: Stock Purchase Agreement (Seattle Genetics Inc /Wa)

Investor Representations and Warranties. The Investor hereby acknowledges, represents and warrants to, and agrees with, the Company and its affiliates as follows: (a) The Investor is acquiring the Shares for his or its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Shares or any of the components of the Shares. Further, the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribing. (b) The Investor has full power and authority to enter into this Agreement, the execution and delivery of this Agreement has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the Investor. (c) The Investor acknowledges its understanding that the offering and sale of the Shares is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees as follows: (1) Investor acknowledges that ~~he will~~ it has sole responsibility for its own due diligence investigation and its own investment decision, and that in connection with its investment decision, Investor has not ~~sell~~ relied on any representation or ~~otherwise transfer~~ information not set forth in this Agreement or in any document filed by the ~~Shares without registration under~~ Company with or furnished to the Securities ~~Act or an exemption therefrom~~ and ~~fully understands and agrees that he must bear~~ Exchange Commission (the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “~~restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144~~Commission”)~~, and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met~~. The Investor ~~also understands that~~acknowledges that it has had an opportunity to conduct such review and analysis of the business, ~~except~~ assets, condition, operations and prospects of the Company and its subsidiaries, both direct and indirect, including an opportunity to ask such questions of management (for which it has received such answers) and to review such information maintained by the Company, in each case as ~~otherwise provided herein and in~~ the ~~certificates~~ Investor considers sufficient for the purpose of purchasing the Investor Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further ~~understands~~ acknowledges that ~~sales or transfers~~ it has had such an opportunity to consult with its own counsel, financial and tax advisers and other professional advisers as it believes is sufficient for the purpose of purchasing the ~~Shares are further restricted by state securities laws and the provisions of this Agreement~~Investor Shares. (h2) ~~No representations or warranties~~ The execution and delivery of this Agreement by Investor and the performance of this Agreement and the consummation by Investor of the transactions contemplated hereby have been ~~made to~~ duly authorized by all necessary (corporate, partnership or limited liability in the ~~Investor~~ case of a corporation, partnership or limited liability company) action of Investor, and this Agreement, when duly executed and delivered by the ~~Company~~Parties, ~~or any officer~~will constitute a valid and legally binding instrument, ~~employee~~enforceable in accordance with its terms against Investor, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made except as enforcement hereof may be limited by the ~~Company with the U.S. Securities~~ effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and ~~Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009~~except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). (i3) ~~Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete~~ Except as set forth on Exhibit A hereto, as of the date of this Agreement ~~and if there should be any material change in such information he will immediately furnish such revised or corrected information~~ (before giving effect to the sale of the Investor Shares contemplated hereby), the Investor is not and will not be the beneficial owner of any shares of Common Stock, securities convertible into or exchangeable for Common Stock or any other equity or equity-linked security of the Company. The Investor is acting independently with respect to the purchase of the Investor Shares contemplated hereby, this Agreement and the other transactions contemplated thereby, and the Investor is not acting as part of a group or in concert with any other person or entity. The Investor is not party to any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of, in each case, any shares of Common Stock or other securities of the Company or any option, warrant or other right to acquire any of the foregoing. The Investor has not disposed of or transferred any shares of Common Stock over the period of thirty (30) days preceding the date of this Agreement. (j4) ~~The~~ Assuming the accuracy of the Company’s representation in Section 5(b)(29), the Investor ~~understands and agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed~~ is not deemed a “substantial security holder” of ~~in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for~~ the Company ~~such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly~~ for purposes of NYSE Listing Rule 312.03. (5) At Closing, the Investor ~~understands~~ will have available funds to complete the purchase of the Investor Shares on the terms and ~~consents that the certificates representing the Shares, in addition to any notation required by law or~~ conditions contemplated by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l6) ~~The Investor~~There is no broker, finder or other party that is entitled to receive from the Investor any brokerage or finder’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares fee or other fee or commission as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities sale of the ~~Company during the period commencing from the time that such~~ Investor ~~first received a term sheet from the Company or any other person setting forth the material terms of the transactions~~ Shares contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 1 contract

Samples: Securities Purchase Agreement (Banc of California, Inc.)

Investor Representations and Warranties. ~~The~~ Investor ~~hereby acknowledges,~~ represents and warrants ~~to, and agrees with, the Company and its affiliates as follows~~to Issuer that: (a) ~~The~~ Investor (i) is a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act) or an institutional "accredited investor" (within the meaning of 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is not an underwriter (as defined in Section 2(a)(11) of the Securities Act) and is aware that the sale is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring the Shares only for ~~his or~~ its own account ~~as principal~~and not for the account of others, ~~not~~ or if Investor is subscribing for the Shares as a ~~nominee~~ fiduciary or ~~agent~~agent for one or more investor accounts, ~~for~~ Investor has full investment ~~purposes only~~discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Shares with a view to, or ~~for~~for offer or sale in connection with, ~~resale,~~ any distribution ~~or fractionalization~~ thereof in ~~whole or in part and no other person has a direct or indirect beneficial interest in such Shares or any~~ violation of the ~~components~~ Securities Act (and shall provide the requested information on Schedule A). Investor is not an entity formed for the specific purpose of acquiring the Shares. Further, the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribing. (b) ~~The~~ Investor is a sophisticated investor, experienced in investing in equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including its participation in the Transaction and has exercised independent judgment in evaluating its participation in the purchase of the Shares. Investor has ~~full power~~ determined based on its own independent review and ~~authority~~ such professional advice as it deems appropriate that Investor's purchase of the Shares and participation in the Transaction (i) are fully consistent with its financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to ~~enter into this Agreement~~it, ~~the execution and delivery of this Agreement has~~ (iii) have been duly ~~authorized~~authorized and approved by all necessary action, ~~if applicable~~(iv) do not and will not violate or constitute a default under Investor's charter or other constituent document or under any law, rule, regulation, agreement or other obligation by which it is bound and ~~this Agreement constitutes~~ (v) are a ~~valid~~ fit, proper and ~~legally binding obligation~~ suitable investment for Investor, notwithstanding the substantial risks inherent in investing in or holding the Shares. Investor is able to bear the substantial risks associated with its purchase of the ~~Investor~~Shares, including, but not limited to, loss of its entire investment therein. (c) ~~The~~ Investor acknowledges ~~its understanding~~ and agrees that the Shares are being offered in a transaction not involving any public offering ~~and sale~~ within the meaning of the Securities Act, that the Shares ~~is intended to be exempt from registration~~ have not been registered under the Securities Act and that Issuer is not required to register the Shares except as set forth in Section 7 of ~~1933~~this Subscription Agreement. Investor acknowledges and agrees that the Shares may not be offered, ~~as amended~~ sold, transferred, pledged or otherwise disposed of by Investor unless (i) pursuant to a registration statement with respect thereto which is effective under the “Securities ~~Act”~~Act and any applicable securities laws, (ii) ~~by virtue of Section 4(2)~~ pursuant to a valid exemption from the registration requirements of the Securities Act and Issuer receives an opinion of counsel, which counsel and opinion are reasonably satisfactory to Issuer, that such securities may be offered, sold, transferred, pledged or otherwise disposed of in the ~~provisions~~ manner contemplated without an effective registration statement under the Securities Act or applicable securities laws or (iii) sold in accordance with Rule 144 under the Securities Act and, in each case, in accordance with any applicable securities laws of ~~Regulation D promulgated thereunder (“Regulation D”)~~the states of the United States and other applicable jurisdictions, and that any certificates or register of members entry representing the Shares shall contain a restrictive legend to such effect, if applicable. ~~In furtherance thereof, the~~ Investor ~~represents and warrants to~~ acknowledges and agrees ~~with the Company and its affiliates as follows: (i) The Investor realizes~~ that the ~~basis for the exemption~~ Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions, Investor may not be ~~present if~~able to readily offer, ~~notwithstanding such representations~~resell, ~~the Investor has in mind merely acquiring Shares for a fixed~~ transfer, pledge or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes otherwise dispose of the ~~private placement exemption under~~ Shares. Investor shall not engage in hedging transactions with regard to the Shares unless in compliance with the Securities Act. ~~If the~~ Investor ~~has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor~~ acknowledges and agrees that it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, transfer, pledge or disposition of any of the Shares. (d) Investor acknowledges and agrees that Investor is purchasing the Shares from Issuer. Investor further acknowledges that there have been no representations, warranties, covenants and agreements made to Investor by ~~his~~ or on behalf of Issuer, any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of Issuer expressly set forth in Section 5 of this Subscription Agreement. (e) Investor ~~Representative~~ acknowledges and agrees that Investor has received, reviewed and understood the offering materials made available to it in connection with the Transaction, and has received and has had an adequate opportunity to review, such financial and other information as Investor deems necessary in order to make an investment decision with respect to the ~~merits~~ Shares, including, with respect to Issuer, the Transaction and the business of Issuer and its subsidiaries. Investor acknowledges that certain information received was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in such projections. Investor acknowledges that: (a) has conducted its own investigation of Issuer and the Shares and has not relied on any statements or other information provided by Issuer concerning Issuer or the Shares or the offer and sale of the Shares, (b) has had access to, and an adequate opportunity to review, financial and other information as it deems necessary to make a decision to purchase the Shares, (c) has been offered the opportunity to ask questions of Issuer and received answers thereto, including on the financial information, as it deemed necessary in connection with its decision to purchase the Shares; and (d) has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the ~~Company~~ Shares. Investor further acknowledges that the information provided to it is preliminary and subject to change, and that any changes to such information, including, without limitation, any changes based on updated information or changes in ~~general~~ terms of the Transaction, shall in no way affect Investor's obligation to purchase the Shares hereunder. (f) Investor became aware of this offering of the Shares solely by means of direct contact between Investor and Issuer or a representative of Issuer, and the ~~suitability~~ Shares were offered to Investor solely by direct contact between Investor and Issuer or a representative of ~~an investment in~~ Issuer. Investor did not become aware of this offering of the Shares, nor were the Shares ~~for~~ offered to Investor, by any other means. Investor acknowledges that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, Issuer, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), other than the representations and warranties of Issuer contained in ~~particular; and~~Section 5 of this Subscription Agreement, in making its investment or decision to invest in Issuer. Investor is relying exclusively on its own sources of information. Based on such information as Investor has independently made its own analysis and decision to enter into the Transaction. (ivg) ~~The~~ Investor ~~(together~~ acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in Issuer's filings with ~~his~~ the SEC. Investor ~~Representative(s), if any)~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of ~~the prospective~~ an investment in the Shares, and Investor has sought such accounting, legal and tax advice as Investor has considered necessary to make an informed investment decision. ~~If other than~~ Investor is able to fend for itself in the transactions contemplated herein, has exercised its independent judgment in evaluating its investment in the Shares, is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and Investor has sought such accounting, legal and tax advice as Investor has considered necessary to make an ~~individual~~informed investment decision. Investor acknowledges that Investor shall be responsible for any of Investor's tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, ~~the Investor also represents it~~ and that Issuer has not ~~been organized for~~ provided any tax advice or any other representation or guarantee regarding the ~~purpose~~ tax consequences of ~~acquiring~~ the ~~Shares~~transactions contemplated by the Subscription Agreement. (dh) ~~The information~~ Alone, or together with any professional advisor(s), Investor has been furnished with all materials that it considers relevant to an investment in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, ~~the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the~~ has had a full opportunity ~~for a reasonable period of time prior to the date hereof~~ to ask questions ~~of,~~ of and receive answers ~~from, the Company~~ from Issuer or ~~its representatives~~ any person or persons acting on behalf of Issuer concerning the terms and conditions of an investment in the ~~offering~~ Shares, has adequately analyzed and fully considered the risks of an investment in the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for ~~the~~ Investor and that Investor is able at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed foreseeable future to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of ~~his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws~~ a total loss of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined Investor's investment in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained hereinIssuer. Investor ~~has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009~~acknowledges specifically that a possibility of total loss exists. (i) ~~Any information which~~ Investor acknowledges and agrees that no federal or state agency has passed upon or endorsed the ~~Investor has heretofore furnished~~ merits of the offering of the Shares or made any findings or determination as to the ~~Company with respect to his financial position and business experience is correct and complete as of the date~~ fairness of this ~~Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company~~investment. (j) ~~The~~ Investor ~~understands~~ has been duly formed or incorporated and ~~agrees that the certificates for the Shares shall bear the following legend until (i) such securities shall have been registered~~ is validly existing and is in good standing under the ~~Securities Act~~ laws of its jurisdiction of formation or incorporation, with power and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration authority to enter into, deliver and perform its obligations under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Subscription Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The execution, delivery and performance by Investor ~~understands that an investment~~ of this Subscription Agreement are within the powers of Investor, have been duly authorized and will not constitute or result in ~~the Shares~~ a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which Investor is a ~~speculative investment~~ party or by which ~~involves a high degree~~ Investor is bound, and will not violate any provisions of ~~risk~~ Investor's organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature of Investor on this Subscription Agreement is genuine, and the ~~potential loss~~ signatory has legal competence and capacity to execute the same or the signatory has been duly authorized to execute the same, and, assuming that this Subscription Agreement constitutes the valid and binding agreement of ~~his entire investment~~Issuer, this Subscription Agreement constitutes a legal, valid and binding obligation of Investor, enforceable against Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. (l) ~~The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth~~Neither Investor nor any of its officers, ~~and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement~~directors, ~~article~~managers, ~~notice or other communication regarding the Securities published in any newspaper~~managing members, ~~magazine or similar media or broadcast over television or radio or presented at any seminar~~ general partners or any other ~~general solicitation~~ person acting in a similar capacity or ~~general advertisement~~carrying out a similar function, is (i) a person named on the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List, the Sectoral Sanctions Identification List, or any other similar list of sanctioned persons administered by the United States (including without limitation the U.S. Treasury Department's Office of Foreign Assets Control ("OFAC"), the U.S. Department of State, and the U.S. Department of Commerce), or any similar list of sanctioned persons administered by the European Union or any individual European Union member state, the United Nations or His Majesty’s Treasury (collectively, "Sanctions Lists"); (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union or any individual European Union member state, including the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a "Prohibited Investor"). Investor represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq. ) (~~n) Other than~~ the ~~transaction contemplated hereunder~~"BSA"), ~~such~~ as amended by the USA PATRIOT Act of 2001 (the "PATRIOT Act"), and its implementing regulations (collectively, the "BSA/PATRIOT Act"), that Investor ~~has~~ maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Investor also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the European Union, or any individual European Union member state, including the United Kingdom, to the extent applicable to it. Investor further represents that the funds held by Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, ~~nor has any person acting on behalf of or pursuant to any understanding with such~~ from a Prohibited Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 1 contract

Samples: Subscription Agreement (Nvni Group LTD)

Investor Representations and Warranties. The Investor ~~hereby acknowledges~~represents, ~~represents and~~ warrants ~~to,~~ and agrees ~~with, the Company and its affiliates~~ as follows: (a1) Investor acknowledges that it has sole responsibility for its own due diligence investigation and its own investment decision, and that in connection with its investment decision, Investor has not relied on any representation or information not set forth in this Agreement. The Investor ~~is acquiring~~ acknowledges that it has had an opportunity to conduct such review and analysis of the ~~Shares~~ business, assets, condition, operations and prospects of the Company and its subsidiaries, both direct and indirect, including an opportunity to ask such questions of management (for ~~his or~~ which it has received such answers) and to review such information maintained by the Company, in each case as the Investor considers sufficient for the purpose of purchasing the Investor Shares. The Investor further acknowledges that it has had such an opportunity to consult with its own ~~account~~ counsel, financial and tax advisers and other professional advisers as ~~principal, not as a nominee or agent,~~ it believes is sufficient for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Shares or any the purpose of ~~the components of the Shares. Further,~~ purchasing the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares for which the Investor is subscribingShares. (b2) The ~~Investor has full power and authority to enter into this Agreement, the~~ execution and delivery of this Agreement ~~has~~ by Investor and the performance of this Agreement and the consummation by Investor of the transactions contemplated hereby have been duly ~~authorized~~authorized by all necessary (corporate, ~~if applicable~~partnership or limited liability in the case of a corporation, partnership or limited liability company) action of Investor, and this ~~Agreement constitutes~~ Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding ~~obligation~~ instrument, enforceable in accordance with its terms against Investor, except as enforcement hereof may be limited by the effect of ~~the Investor~~any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). (c3) The Investor acknowledges ~~its understanding~~ that the ~~offering and sale of the~~ Investor Shares ~~is intended to be exempt from registration~~ have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or under any state securities laws, and is aware that the sale of the Investor Shares to it is being made in reliance on a private placement exemption from registration under the Securities Act. The Investor (i) ~~by virtue~~ is acquiring the Investor Shares for its own account pursuant to an exemption from registration under the Securities Act for investment only and with no present intention of ~~Section 4(2~~distributing any of the Investor Shares to any person or any arrangement or understanding with any other persons regarding the distribution of such Investor Shares (the foregoing representation and warranty does not limit the Investor’s right to sell such Investor Shares pursuant to an effective registration statement or otherwise in compliance with the Securities Act and any other applicable securities laws), (ii) will not sell or otherwise dispose of any of the Investor Shares, except in compliance with the registration requirements or exemption provisions of the Securities Act and ~~the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof~~any other applicable securities laws, the Investor represents and warrants to and agrees with the Company and its affiliates as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Investor does not have any such intention. (ii) The Investor has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of ~~the~~ its prospective investment in the Investor Shares~~. If other than an individual~~, (iv) has the ~~Investor also represents it has not been organized for~~ ability to bear the ~~purpose~~ economic risks of ~~acquiring~~ its prospective investment and can afford the ~~Shares.~~ complete loss of such investment and (dv) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited ~~investor,~~inves- tor” (as that term is defined in by Rule 501 ~~of Regulation D. (e)~~ promulgated under the Securities Act). The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent understands that the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify will rely upon the accuracy of the ~~information provided in order for him to evaluate the merits~~ foregoing representations, acknowledgements and ~~risks of purchase~~ agreements and agrees that if any of the ~~Shares to~~ representations and acknowledgements made by it is no longer accurate, it shall promptly notify the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investmentCompany. (f4) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investment. The Investor has relied on the advice of, or has consulted with only those persons, if any, named as Investor Representative(s) herein and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to the Investor in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any information which the Investor has heretofore furnished to the Company with respect to his financial position and business experience is correct and complete as As of the date of this Agreement and ~~if there should be any material change in such information he will immediately furnish such revised or corrected information~~ as of the date of the Closing (before giving effect to the sale of the Investor Shares contemplated hereby), the Investor is and will be the beneficial owner of only the number of shares of Common Stock, securities convertible into or exchangeable for Common Stock or any other equity or equity-linked security of the Company, if any, set forth on Schedule I hereto. The Investor is acting independently with respect to the purchase of the Investor Shares contemplated hereby, this Agreement and the other transactions contemplated thereby, and the Investor is not acting as part of a group or in concert with any other person or entity. The Investor is not party to any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of, in each case, any shares of Common Stock or other securities of the Company or any option, warrant or other right to acquire any of the foregoing. (j5) The Investor ~~understands and agrees that~~ has available funds to complete the ~~certificates for the Shares shall bear the following legend until (i) such securities shall have been registered under the Securities Act and effectively been disposed~~ purchase of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor ~~understands~~ Shares on the terms and ~~consents that the certificates representing the Shares, in addition to any notation required by law or~~ conditions contemplated by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l6) ~~The Investor~~There is no broker, finder or other party that is entitled to receive from the Investor any brokerage or finder’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares fee or other fee or commission as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities sale of the ~~Company during the period commencing from the time that such~~ Investor ~~first received a term sheet from the Company or any other person setting forth the material terms of the transactions~~ Shares contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none of the cash or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described herein. (n) The foregoing representations, warranties and agreements shall survive the Closing.

Appears in 1 contract

Samples: Securities Purchase Agreement (Banc of California, Inc.)

Investor Representations and Warranties. The Investor ~~hereby acknowledges,~~ represents and warrants ~~to, and agrees with,~~ to the ~~Company and its affiliates as follows~~Corporation that: ~~(a)~~ a. ACCOUNT/REGULATION S. The Investor is acquiring the Shares for ~~his or~~ investment for its own ~~account as principal, not as a nominee or agent, for investment purposes only~~account, and not with a view to, or ~~for~~for resale in connection with, ~~resale~~any distribution thereof, ~~distribution~~ and it has no present intention of selling or ~~fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Shares or~~ distributing any ~~of the components~~ of the Shares. ~~Further, the~~ The Investor ~~does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of~~ understands that the Shares ~~for which the Investor is subscribing. (b) The Investor has full power and authority to enter into this Agreement, the execution and delivery of this Agreement has~~ have not been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the Investor. (c) The Investor acknowledges its understanding that the offering and sale of the Shares is intended to be exempt from registration registered under the Securities Act of 1933, as amended (the “"Securities Act”") by ~~virtue~~ reason of ~~Section 4(2)~~ a specific exemption from the registration provisions of the Securities Act ~~and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof~~which depends upon, among other things, the ~~Investor represents and warrants to and agrees with~~ bona fide nature of the ~~Company and its affiliates~~ investment as follows: (i) The Investor realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Investor has in mind merely acquiring Shares for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not riseexpressed herein. The Investor ~~does not have any such intention. (ii) The Investor has~~ understands that the ~~financial ability~~ Corporation is relying on the rules and regulations governing offers and sales made outside the United States to ~~bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect~~ non-"U.S. Persons" pursuant to ~~his investment in the Company; (iii) (insert name of Investor Representative: if none, so state) has acted as the Investor’s Investor Representative for purposes of the private placement exemption~~ Regulation S under the Securities Act. If the Investor has appointed a Investor Representative (which term is used herein with the same meaning as given in Rule 501(h) of Regulation D), the Investor has been advised by his Investor Representative as to the merits and risks of an investment in the Company in general and the suitability of an investment in the Shares for the Investor in particular; and (iv) The Investor (together with his Investor Representative(s), if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Shares. If other than an individual, the Investor also represents it has not been organized for the purpose of acquiring the Shares. (d) The information in the Accredited Investor Questionnaire completed and executed by the Investor is substantially in the form of the Accredited Investor Questionnaire (the “Accredited Investor Questionnaire”) and is accurate and true in all respects and the Investor is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (e) The Investor and his Investor Representative, if any, have: (i) had access to and carefully reviewed the Company’s SEC Documents and other public filings, the Schedules and Exhibits to this Agreement and has had on opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Shares, the Company, and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iii) been given the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Shares and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information provided in order for him to evaluate the merits and risks of purchase of the Shares to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; (iv) not been furnished with any oral representation or oral information in connection with the offering of the Shares which is not contained herein; and (v) determined that the Shares are a suitable investment for the Investor and that at this time the Investor could bear a complete loss of such investment. (f) The Investor is not relying on the Company, or its affiliates with respect to economic considerations involved in this investmentb. ACCESS TO DATA. The Investor has ~~relied on~~ had an opportunity to discuss the ~~advice of~~Corporation's business, ~~or has consulted~~ management and financial affairs with ~~only those persons, if any, named as Investor Representative(s) herein~~ its management and in the Accredited Investor Questionnaire. Each Investor Representative is capable of evaluating the merits and risks of an investment in the Shares on the terms and conditions set forth herein and each Investor Representative has disclosed to ~~the Investor in writing (a copy of which is annexed to this Agreement) the specific details of~~ obtain any and all past, present or future relationships, actual or contemplated, between himself and the Company or any affiliate or subsidiary thereof. (g) The Investor represents, warrants and agrees that he will not sell or otherwise transfer the Shares without registration under the Securities Act or an exemption therefrom and fully understands and agrees that he must bear the economic risk of his purchase because, among other reasons, the Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption from such registration is available. In particular, the Investor is aware that the Shares are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Investor also understands that, except as otherwise provided herein and in the certificates for the Shares, the Company is under no obligation to register the Shares on his behalf or to assist him in complying with any exemption from registration under the Securities Act or applicable state securities laws. The Investor further understands that sales or transfers of the Shares are further restricted by state securities laws and the provisions of this Agreement. (h) No representations or warranties have been made to the Investor by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein, and in subscribing for Shares the Investor is not relying upon any representations other than those contained herein. Investor has carefully reviewed filings made by the Company with the U.S. Securities and Exchange Commission and the Company’s Confidential Private Placement Memorandum dated February 2, 2009. (i) Any additional information which the Investor has ~~heretofore furnished~~ deemed necessary or appropriate for deciding whether or not to purchase the ~~Company~~ Shares, including an opportunity to receive, review and understand the disclosures and information regarding the Corporation's financial statements, capitalization and other business information as set forth in Corporation's filings with ~~respect to his financial position~~ the Securities and ~~business experience~~ Exchange Commission through December 16, 1996, all incorporated herein by reference, together with all exhibits referenced therein as well as the Corporation's Private Placement Memorandum dated January 2, 1996 prepared for the Corporation's trade creditors. Attached hereto as Exhibit B and incorporated herein by reference is ~~correct and complete~~ the Corporation's approximate Pro-Form Capitalization as of the date ~~of this Agreement and if there should be any material change in such information he will immediately furnish such revised or corrected information to the Company. (j)~~ hereof. The Investor ~~understands and agrees~~ acknowledges that ~~the certificates for the Shares shall bear the following legend until (i) such securities shall~~ no other representations or warranties, oral or written, have been registered under the Securities Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such securities may be sold without registration under the Securities Act as well as any applicable “Blue Sky” or state securities laws. Accordingly the Investor understands and consents that the certificates representing the Shares, in addition to any notation required by law or by this Agreement, shall have the following legend: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW.” (k) The Investor understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of his entire investment. (l) The Investor’s overall commitment to investments which are not readily marketable is not disproportionate to the Investor’s net worth, and an investment in the Shares will not cause such overall commitment to become excessive. (m) Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. (n) Other than the transaction contemplated hereunder, such Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Investor, executed any disposition, including Short Sales (defined below), in the securities of the Company during the period commencing from the time that such Investor first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the ~~portfolio managers managing other portions of such Investor’s assets, the representation~~ Corporation or any agent thereof except as set forth ~~above shall only apply with respect~~ in this Agreement. c. NO FAIRNESS DETERMINATION. The Investor is aware that no federal, state or other agency has made any finding or determination as to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). For the purpose of this Agreement, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). (m) Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, Investor hereby represents, warrants and agrees that, to the best of Investor’s knowledge based upon appropriate diligence and investigation: (i) none fairness of the ~~cash~~ investment, nor made any recommendation or property that Investor has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, an activity that is deemed criminal under United States law; (ii) no contribution or payment by Investor to the Company shall cause the Company to be in violation endorsement of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001; (iii) Investor agrees to promptly notify the Company if any of these representations cease to be true and accurate regarding Investor, and to provide to the Company any additional information regarding Investor that the Company deems necessary or appropriate to ensure compliance with all applicable laws concerning money laundering and similar activities; (iv) Investor agrees that if at any time the Company determines that any of the foregoing representations are incorrect with respect to Investor, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Company may undertake whatever actions it considers appropriate to ensure compliance with applicable law or regulation, including causing the withdrawal of Investor from the Company in accordance with such terms as the Company shall determine in its discretion are required to comply with applicable laws and regulations; and (v) Investor further agrees that the Company may release confidential information about such Investor to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws described hereinShares. ~~(n) The foregoing representations, warranties and agreements shall survive the Closing.~~

Appears in 1 contract

Samples: Common Stock Purchase Agreement (Hyundai Motor Co)

Common use of Investor Representations and Warranties Clause in Contracts