Investor Representations, Warranties and Covenants. (a) The Executive hereby represents and warrants to the Company that:
(1) the Executive has all requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby and has taken all requisite action to authorize the execution, delivery and performance of this Agreement, and this Agreement has been duly executed by the Executive;
(2) the execution, delivery and performance of this Agreement by the Executive does not and will not, with or without notice or the passage of time, conflict with, breach, violate or cause a default under any agreement, contract or instrument to which the Executive is a party or any judgment, order or decree to which the Executive is subject;
(3) the Executive will not, as of the Closing Date, be a party to or be bound by any employment agreement, consulting agreement, non-compete agreement, confidentiality agreement or similar agreement with any other Person;
(4) upon the execution and delivery of this Agreement by the Company and the Executive, this Agreement will be a legal, valid and binding obligation of the Executive, enforceable in accordance with its terms;
(5) the Executive as of the Closing Date will be a continuing employee of the Company or one of its Affiliates;
(6) the Deferred Common Stock Units and the Deferred Preferred Units to be issued to the Executive pursuant to this Agreement and the Participant Securities which may be acquired by the Executive are being acquired for Executive's own account, for investment only and not with a view to, or an intention of, distribution thereof in violation of the Securities Act, or any applicable state securities laws, and will not be disposed of in contravention of the Securities Act or any applicable state securities laws;
(7) the Executive has generally such knowledge and experience in business and financial matters and with respect to investments in securities of privately held companies so as to enable him to understand and evaluate the risks and benefits of his or her investment in the Participant Securities;
(8) the Executive has no need for liquidity in his or her investment in the Participant Securities and is able to bear the economic risk of his or her investment in the Participant Securities for an indefinite period of time and understands that the Participant Securities have not been registered or qualified under the Securities Act or any applicable state securities laws, by reason of the issuance of the Partic...
Investor Representations, Warranties and Covenants. The undersigned hereby acknowledges, represents and warrants to, and agrees with the Company as follows:
(a) The undersigned is acquiring the Shares for the undersigned’s own account as principal, for investment purposes only, and not with a view to, or for, resale or distribution of all or any part of the Shares and no other person has a direct or indirect beneficial interest in such Shares;
(b) The undersigned 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 Rule 505 of Regulation D (“Regulation D”) promulgated thereunder and Section 4(6) of the Securities Act, and, in furtherance thereof, the undersigned represents and warrants to and agrees with the Company that the undersigned has the financial ability to bear the economic risk of the undersigned’s investment, has adequate means for providing for the undersigned’s current needs and contingencies and has no need for liquidity with respect to the undersigned’s investment in the Shares.
(c) The undersigned is an “accredited investor” as defined in Rule 501(a) of Regulation D under the Securities Act. The undersigned hereby certifies that the information set forth in the attached Accredited Investor Questionnaire is accurate and complete as of the date of this Agreement.
(d) The undersigned:
(i) has been furnished with a copy of the Memorandum and any other documents which have been made available upon request and the undersigned has carefully read the Memorandum and understands and has evaluated the risks of a purchase of the Shares including the risks set forth under “Risk Factors” in the Memorandum; and has relied solely on the information contained in the Memorandum, and any supplemental written information furnished pursuant to Subsection (ii) below;
(ii) has been given the opportunity to ask questions of and receive answers from the Company concerning the terms and conditions of the Offering of the Shares and has been given the opportunity to obtain additional information necessary to satisfy the undersigned as to the accuracy of the information contained in the Memorandum to the extent that the Company possesses such information or can acquire it without unreasonable effort or expense and has not been furnished with any other offering literature except as referred to in the Memorandum;
(iii) has not relied on any o...
Investor Representations, Warranties and Covenants. The undersigned makes the following representations, warranties and covenants with the intent that the same will be relied upon by the Company:
Investor Representations, Warranties and Covenants. Each of the Investors represents and warrants as to itself to the Company that as of the date hereof and the Closing Date:
(1) (i) Investor has full right, power and authority 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 (ii) this Agreement constitutes a valid and binding obligation of Investor enforceable against 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 considered in a proceeding in equity or at law).
(2) Investor has received copies of the Registration Statement and the Prospectus, 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 contained in the Registration Statement and the Prospectus, and Investor has not relied on any such other information or representations in making a decision to purchase the Investor Shares. Investor, in connection with its decision to purchase Offered Shares, relied only upon the Registration Statement, the Prospectus and the representations and warranties of the Company contained herein.
(3) 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 not relied on any representation or information not set forth in this Agreement, the Registration Statement or the Prospectus.
(4) Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Offered Shares, or possession or distribution of offering materials in connection with the issue of the Investor Shares in any jurisdiction outside the United States where action for that purpose is required.
(5) Investor understands that nothing in this Agreement or any other materials p...
Investor Representations, Warranties and Covenants. The Investor hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
(a) This Subscription Agreement has been duly authorized, executed and delivered by the Investor and, upon due authorization, execution and delivery by the Company, will constitute the valid and legally binding agreement of the Investor enforceable in accordance with its terms against the Investor, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time in effect.
(b) The Investor is acquiring the Shares for the Investor’s own account as principal for investment and not with a view to the distribution or sale thereof.
(i) The Investor understands that the offering and sale of the Shares are intended to be exempt from registration under the 1933 Act, applicable U.S. state securities laws and the laws of any non-U.S. jurisdictions by virtue of the private placement exemption from registration provided in Section 4(a)(2) of the 1933 Act, exemptions under applicable U.S. state securities laws and exemptions under the laws of any non-U.S. jurisdictions, and it agrees that any Shares acquired by the Investor may not be sold, offered for sale, exchanged, transferred, assigned, pledged, hypothecated or otherwise disposed of (each, a “Transfer”) in any manner that would require the Company to register the Shares under the 1933 Act, under any U.S. state securities laws or under the laws of any non-U.S. jurisdictions.
(ii) The Investor understands that the Company requires each investor in the Company to be an “accredited investor” as defined in Rule 501(a) of Regulation D of the 1933 Act (“Accredited Investor”) and the Investor represents and warrants that it is an Accredited Investor.
(iii) The Investor understands that the offering and sale of the Shares in non-U.S. jurisdictions may be subject to additional restrictions and limitations, and represents and warrants that it is acquiring its Shares in compliance with all applicable laws, rules, regulations and other legal requirements applicable to the Investor including, without limitation, the legal requirements of jurisdictions in which the Investor is resident and in which such acquisition is being consummated. Furthermore, the Investor understands that all offerings and sales made outside the United States will be...
Investor Representations, Warranties and Covenants. The Investor hereby acknowledges, represents, warrants or covenants, as the case may be, to the Company as follows:
(a) The Investor is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act, as indicated by his response set forth in the Investor Questionnaire attached hereto, and that he is able to bear economic risk of an investment in the Units.
(b) The Investor has prior investment experience, including investment in non-listed and non-registered securities, or he has employed the services of an investment advisor, attorney or accountant to read all of the documents furnished or made available by the Company both to him and to all other prospective investors in the Units, including the documents filed with the Securities and Exchange Commission (“SEC”) pursuant to the Securities Act of 1934, as amended (the “Exchange Act”), and to evaluate the merits and risks of such an investment on his behalf, and that he recognizes the highly speculative nature of this investment.
(c) The Investor acknowledges receipt and careful review of the Memorandum, including, but not limited to, the attachments and exhibits thereto, including the Company’s (i) Form 10-KSB for the fiscal year ended September 30, 2002 (“Form 10-KSB”), and (ii) Forms 10-QSB for the quarters ended December 31, 2002, March 31, 2003 and June 30, 2003, and hereby represents that he has been furnished by the Company during the course of this transaction with all other information regarding the Company which he had requested or desired to know, that all documents which could be reasonably provided have been made available for his inspection and review, that he has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the terms and conditions of the Private Placement, and any additional information which he had requested.
(d) The Investor understands and recognizes that the purchase of the Units is highly speculative and involves a high degree of risk and that only investors who can afford the loss of their entire investment should consider investing in the Company. The Investor understands all the risks of investing in the Company, including, without limitation, that (i) the Company has incurred losses of $2,988,035, $220,347, $487,753 and $641,124, for the fiscal year ended September 30, 2002 and each of the quarters ended December 31, 2002, Marc...
Investor Representations, Warranties and Covenants. The Investor hereby acknowledges, represents and warrants to, and agrees with, the Company as follows:
Investor Representations, Warranties and Covenants. The Investor hereby represents, warrants and acknowledges and agrees with the Corporation as follows:
Investor Representations, Warranties and Covenants. The Investor represents, warrants and covenants to and with the Company, and acknowledges that the Company is relying upon such representations, warranties and covenants in entering into this Agreement, as of the date hereof and as of the Closing Time, that:
(i) the Investor represents and warrants that neither the Investor itself nor any third party acting on Investor’s behalf in any capacity, neither domestically nor internationally, shall execute short sales (“sales to open”) in the Common Shares at any time, commencing with the execution of this Agreement and remaining in force until the end of the Term or its termination and retirement by the Company;
(ii) the Investor represents and warrants that no commission or finder’s fee will be paid by the Investor to any third party in connection with the Offering or any Tranche of Units issued pursuant thereto;
(iii) the Investor has been formed and is existing under the laws of the Investor’s jurisdiction of formation within Canada and has the corporate power to enter into and perform its obligations under this Agreement;
(iv) the execution and delivery of and performance by the Investor of this Agreement has been authorized by all necessary action on the part of the Investor; and
(v) this Agreement has been duly executed and delivered by the Investor and constitutes a legal, valid and binding agreement of the Investor, enforceable against such Investor in accordance with its terms.
Investor Representations, Warranties and Covenants. The Investor represents, warrants and agrees as follows:
(1) The Investor has received and reviewed a copy of the Memorandum, and all appendices and supplements (if any) thereto, relating to the Shares and understands that no Person has been authorized to give any information or to make any representations that were not contained in the Memorandum, and the Investor has not relied on any such other information or representations in making a decision to purchase the Investor Shares. The Investor has had access to such financial and other information and has had the opportunity to ask questions and receive answers as deemed necessary in respect of the decision to purchase the Investor Shares, and has consulted with advisors concerning the proposed investment in the Company. The Investor understands that an investment in the Company involves a high degree of risk for the reasons, among others, set forth under the caption "RISK FACTORS" in the Memorandum.
(2) The Investor has decided to invest in the Shares and, in making the decision to so invest, is not in any way relying on the fact that any other Person has decided to invest in the Shares.
(3) The Investor represents that the Investor (or, if applicable, each managed account on whose behalf the Investor Shares are being purchased by such Investor) is a sophisticated investor or is an "accredited investor" as defined in Rule 501 under the Securities Act of 1933, as amended (the "Securities Act"), as certified by the Investor pursuant to the Investor Questionnaire attached hereto as Annex I. The Investor further represents that the Investor (or, if applicable, each managed account on whose behalf the Investor Shares are being purchased) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risk of an investment in the Shares and can bear the economic risk of loss of the entire investment in the Shares being purchased.
(4) The Investor understands and expressly acknowledges and agrees that none of the Shares has been, or will be, registered or qualified under the Securities Act, or under any applicable securities laws of any State of the United States ("Applicable State Law") and therefore may not be offered, sold, transferred, assigned, pledged, hypothecated or otherwise disposed of, directly or indirectly, unless subsequently registered or qualified under the Securities Act and under Applicable State Law or unless an exemption from the registration ...
