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 presented to Investor in connection with the purchase and sale of the Offered Shares constitutes legal, tax or investment advice. Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Offered Shares. (6) From and after the date Investor received any information about the existence of this offering, Investor has not offered, pledged, sold, contracted to sell, sold any option or contract to purchase, purchased any option or contract to sell, granted any option, right or warrant to purchase, loaned, or otherwise transferred or disposed of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, entered into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, or directly or indirectly, through related parties, affiliates or otherwise sold “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. Investor covenants that it will not, nor will it authorize or permit any Person acting on its behalf to, engage in any such transactions until following the Closing.
Appears in 1 contract
Investor Representations, Warranties and Covenants. Each of the Investors represents Investor represents, warrants, covenants and warrants agrees as to itself to the Company that follows as of the date hereof and as of the Closing DateClosing:
(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 and reviewed 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 Investor hereby consents to purchase Offered Shares, relied only upon receiving delivery of the Registration Statement, the Prospectus Statement and the representations Prospectus, including all documents and warranties of information incorporated by reference therein and amendments thereto, by electronic mail. Investor understands that an investment in the Company contained hereininvolves a high degree of risk for the reasons, among others, set forth under the caption Risk Factors in the Prospectus.
(32) 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 information, as the case may be, 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 Person affiliated with the Company or on the fact 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 presented Person has decided to Investor in connection with the purchase and sale of the Offered Shares constitutes legal, tax or investment advice. Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Offered Shares.
(63) From The execution and after the date Investor received any information about the existence delivery of this offering, Agreement by Investor has not offered, pledged, sold, contracted to sell, sold any option or contract to purchase, purchased any option or contract to sell, granted any option, right or warrant to purchase, loaned, or otherwise transferred or disposed of, directly or indirectly, any shares and the performance of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, entered into any swap or other arrangement that transfers to another, in whole or in part, any this Agreement and the consummation by Investor of the economic consequences transactions contemplated hereby have been duly authorized by all necessary corporate or partnership action of ownership Investor, as applicable, and this Agreement, when duly executed and delivered by Investor, will constitute a valid and legally binding instrument, enforceable in accordance with its terms against Investor, except as enforcement hereof may be limited by the effect of the Common Stockany applicable bankruptcy, insolvency, reorganization or directly similar laws or indirectly, through related parties, affiliates 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 otherwise sold “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. Investor covenants that it will not, nor will it authorize or permit any Person acting on its behalf to, engage in any such transactions until following the Closingat law).
Appears in 1 contract
Samples: Securities Purchase Agreement
Investor Representations, Warranties and Covenants. Each The Investor represents, warrants and covenants to the Company, the Company’s representatives and agents, and Intermediary, as follows:
(a) The Investor has full legal capacity, power and authority to execute and deliver this SAFE and to perform its obligations hereunder. This SAFE constitutes a valid and binding obligation of the Investors Investor, enforceable per its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
(b) The Investor has been advised that the Securities have not been registered under the Securities Act or any state securities laws and are offered and sold hereby pursuant to Section 4(a)(6) of the Securities Act. The Investor understands that the Securities may be resold or otherwise transferred unless they are registered under the Securities Act and applicable state securities laws or pursuant to Rule 501 of Reg. CF, in which case certain state transfer restrictions may apply.
(c) The Investor is purchasing the Securities for its own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof, and the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. The Investor understands that the Securities have not been, and will not be, registered under the Securities Act or any state securities laws, by reason of specific exemptions under the provisions thereof which depend upon, among other things, the bona fide nature of the investment intent and the accuracy of each Investor’s representations as expressed herein.
(d) The Investor acknowledges, and is purchasing the Securities in compliance with, the investment limitations set forth in Rule 100(a)(2) of Reg. CF, promulgated under Section 4(a)(6)(B) of the Securities Act.
(e) The Investor acknowledges that the Investor has received all the information the Investor has requested from the Company and the Investor considers necessary or appropriate for deciding whether to acquire this instrument and the underlying securities, and the Investor represents that the Investor has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of this instrument and the underlying securities and to obtain any additional information necessary to verify the accuracy of the information given to the Investor. In deciding to subscribe to this instrument, the Investor is not relying on the advice or recommendations of the Company or of the Intermediary and the Investor has made its own independent decision that an investment in this instrument and the underlying securities is suitable and appropriate for the Investor. The Investor understands that no federal or state agency has passed upon the merits or risks of an investment in this instrument and the underlying securities or made any finding or determination concerning the fairness or advisability of this investment.
(f) The Investor understands and acknowledges that the Securities provide the Investor no voting, information or inspection rights, aside from any disclosure requirements the Company is required to make under relevant securities regulations.
(g) The Investor understands that no public market now exists for any of the securities issued by the Company, and that the Company has made no assurances that a public market will ever exist for this instrument and the securities to be acquired by the Investor hereunder.
(h) The Investor is not (i) a citizen or resident of a geographic area in which the purchase of or holding of the Securities, or any securities convertible or issuable therefrom, is prohibited by applicable law, decree, regulation, treaty, or administrative act, (ii) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other applicable sanctions or embargoes, or (iii) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals List, the U.S. Department of State’s Debarred Parties List or other applicable sanctions lists. Investor hereby represents and agrees that if Investor’s country of residence or other circumstances change such that the above representations are no longer accurate, Investor will immediately notify Company. Investor further represents and warrants as that it will not knowingly sell or otherwise transfer any interest in the Securities, or any securities convertible or issuable therefrom, to itself a party subject to the Company that as of the date hereof and the Closing Date:U.S. or other applicable sanctions.
(1) (i) If the Investor is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended), the Investor hereby represents that it has satisfied itself as to the full rightobservance of the laws of its jurisdiction in connection with any invitation, purchase and payment for, and continued ownership of, its beneficial interest in the Securities, or any securities convertible or issuable therefrom, will not violate any applicable securities or other laws of the Investor’s jurisdiction, including (i) the legal requirements within its jurisdiction for the purchase of its beneficial interest in the Securities, or any securities convertible or issuable therefrom; (ii) any foreign exchange restrictions applicable to such purchase; (iii) any governmental or other consents that may need to be obtained; and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, conversion, redemption, sale, or transfer of its beneficial interest in the Securities, or any securities convertible or issuable therefrom. The Investor acknowledges that the Company has taken no action in foreign jurisdictions with respect to the Securities, or any securities convertible or issuable therefrom, (and the Investor’s beneficial interest therein) and the underlying securities.
(j) If the Investor is a corporate entity: (i) such corporate entity is duly incorporated, validly existing and in good standing under the laws of the state of its incorporation, and has the power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize SAFE; (ii) the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of by the 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 SAFE is within 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 power of the Investor Shares in any jurisdiction outside and has been duly authorized by all necessary actions on the United States where action for that purpose is required.
(5) Investor understands that nothing in this Agreement or any other materials presented to Investor in connection with the purchase and sale part of the Offered Shares constitutes legal, tax or investment advice. Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Offered Shares.
(6) From and after the date Investor received any information about the existence of this offering, Investor has not offered, pledged, sold, contracted to sell, sold any option or contract to purchase, purchased any option or contract to sell, granted any option, right or warrant to purchase, loaned, or otherwise transferred or disposed of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, entered into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, or directly or indirectly, through related parties, affiliates or otherwise sold “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. Investor covenants that it will not, nor will it authorize or permit any Person acting on its behalf to, engage in any such transactions until following the Closing.Investor;
Appears in 1 contract
Investor Representations, Warranties and Covenants. Each of the Investors represents The Investor represents, warrants and warrants agrees as to itself to the Company that as of the date hereof and the Closing Datefollows:
(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) The Investor has received and reviewed 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 the 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 The Investor hereby consents to purchase Offered Shares, relied only upon receiving delivery of the Registration Statement, the Prospectus Statement and the representations Prospectus, including all documents and warranties of information incorporated by reference therein and amendments thereto, by electronic mail. The Investor understands that an investment in the Company contained hereininvolves a high degree of risk for the reasons, among others, set forth under the captions “RISK FACTORS” in the Prospectus.
(32) 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, the Investor has not relied on any representation or information not set forth in this Agreement, the Registration Statement or the Prospectus.
, on the selling agent (4Xxxxxxx Xxxxx & Company, L.L.C.) Investor acknowledgesor any Person affiliated with the selling agent, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or on the fact 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 presented Person has decided to Investor invest in connection with the purchase and sale of the Offered Shares constitutes legal, tax or investment advice. Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Offered Shares.
(63) From The execution and after the date Investor received any information about the existence delivery of this offeringAgreement by the Investor and the performance of this Agreement and the consummation by the Investor of the transactions contemplated hereby have been duly authorized by all necessary (corporate, Investor has not offeredpartnership or limited liability in the case of a corporation, pledgedpartnership or limited liability company) action of the Investor, soldand this Agreement, contracted when duly executed and delivered by the Investor, will constitute a valid and legally binding instrument, enforceable in accordance with its terms against the Investor, except as enforcement hereof may be limited by the effect of 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 sellgeneral principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(4) No state, sold any option federal or contract to purchaseforeign regulatory approvals, purchased any option permits, licenses or contract to sell, granted any option, right or warrant to purchase, loaned, or otherwise transferred or disposed of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, entered into any swap consents or other arrangement that transfers contractual or legal bligations are required for the Investor to another, in whole enter into this Agreement or in part, any of purchase the economic consequences of ownership of the Common Stock, or directly or indirectly, through related parties, affiliates or otherwise sold “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. Investor covenants that it will not, nor will it authorize or permit any Person acting on its behalf to, engage in any such transactions until following the ClosingShares.
Appears in 1 contract
Investor Representations, Warranties and Covenants. Each of Investor, severally and not jointly with the Investors represents other Investors, represents, warrants and warrants agrees as to itself to the Company that as of the date hereof and the Closing Datefollows:
(1) (i) Investor has full right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby is duly incorporated and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid existence and binding obligation the authorization to transact business as a corporation under the laws of Investor enforceable against Investor its jurisdiction of incorporation and is in accordance with its terms, except good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so 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 require such enforceability is considered in a proceeding in equity or at law)qualification.
(2) Investor has received and reviewed copies of the Registration Statement and the Preliminary 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 this Agreement, the Registration Statement and the Preliminary 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 Investor hereby consents to purchase Offered Shares, relied only upon receiving delivery of the Registration Statement, the Prospectus Statement and the representations Preliminary Prospectus, including all documents and warranties of information incorporated by reference therein and amendments thereto, by electronic mail. Investor understands that an investment in the Company contained hereininvolves a high degree of risk for the reasons, among others, set forth under the captions “RISK FACTORS” in the Prospectus.
(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 Preliminary Prospectus and its investment decision, Investor has not relied on (a) any representation or information not set forth in this Agreement, the Registration Statement or the Preliminary Prospectus.
, (4b) Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by Person affiliated with the Company or (c) the fact that would permit an offering of any other Person has decided to invest in 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 the Prospectus, this Agreement or any other materials presented to such Investor in connection with the purchase and sale of the Offered Shares constitutes legal, tax or investment advice. Such Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Investor Shares.
(4) The execution and delivery of this Agreement by Investor and the Offered performance of this Agreement and the consummation by Investor of the transactions contemplated hereby have been duly authorized by all necessary (corporate, partnership or limited liability in the case of a corporation, partnership or limited liability company) action of Investor, and this Agreement, when duly executed and delivered by Investor, will constitute a valid and legally binding instrument, enforceable in accordance with its terms against Investor, except as enforcement hereof may be limited by the effect of 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).
(5) No state, federal or foreign regulatory approvals, permits, licenses or consents or other contractual or legal obligations are required for Investor to enter into this Agreement or purchase the Investor Shares.
(6) Each Investor, if outside the United States of America, will comply with all applicable laws and regulations in each jurisdiction where it purchases, offers, sells or delivers Offered Shares or has in its possession or distributes any offering material, in all cases at its own expense.
(7) From and after obtaining the date knowledge of the sale of the Investor received any information about the existence of this offeringShares contemplated hereby, such Investor has not offeredtaken, pledgedand prior to the public announcement of the transaction (which the Company covenants and agrees shall be no later than 8:30 am on April 23, sold2008) such Investor shall not take, contracted any action that has caused or will cause such Investor to sell, sold any option or contract to purchase, purchased any option or contract to sell, granted any option, right or warrant to purchase, loaned, or otherwise transferred or disposed ofhave, directly or indirectly, sole or agreed to sell any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, entered into effected any swap short sale, whether or other arrangement that transfers not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the Exchange Act) with respect to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, granted any other right (including, without limitation, any put or directly call option) with respect to the Common Stock or with respect to any security that includes, related to or derives any significant part of its value from the Common Stock, whether or not, direct or indirectly, through related partiesin order to hedge its positions in the Investor Shares.
(8) The execution, affiliates delivery and performance by Investor of this Agreement and the consummation by Investor of the transactions contemplated herein do not and shall not (i) result in a violation of Investor’s charter documents, bylaws or other applicable organizational instruments, (ii) conflict with, constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give rise to any rights of termination, amendment, acceleration or cancellation of, any material agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which Investor is a party or is bound, (iii) create or impose any lien, charge or encumbrance on any property of the Investor under any agreement or any commitment to which Investor is party or under which Investor is bound or under which any of its properties or assets are bound, or (iv) result in a violation of any federal, state, local or foreign statute, rule, or regulation, or any order, judgment or decree of any court or governmental agency applicable to Investor or by which any of its properties or assets are bound or affected, except, in the case of clauses (ii), (iii) and (iv), for such conflicts, defaults, terminations, amendments, acceleration, cancellations and violations as would not, individually or in the aggregate, prohibit or otherwise sold “short” or “short against interfere with the box” (as those terms are generally understood) any equity security ability of the Company. Investor covenants that it will notto enter into and perform its obligations under this Agreement in any material respect.
(9) The Company shall not undertake another equity financing of its securities (including, nor will it authorize or permit any Person acting on its behalf but not limited to, engage in any such transactions until following additional issuances pursuant to the ClosingRegistration Statement) prior to April 29, 2008, other than the sale of up to $10 million of Common Stock by the Company under the Registration Statement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Agfeed Industries, Inc)
Investor Representations, Warranties and Covenants. Each of Investor, severally and not jointly with the Investors represents other Investors, represents, warrants and warrants agrees as to itself to the Company that as of the date hereof and the Closing Datefollows:
(1) (i) Investor has full right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby is duly incorporated and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid existence and binding obligation the authorization to transact business as a corporation under the laws of Investor enforceable against Investor its jurisdiction of incorporation and is in accordance with its terms, except good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so 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 require such enforceability is considered in a proceeding in equity or at law)qualification.
(2) Investor has received and reviewed copies of the Registration Statement and the Preliminary 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 this Agreement, the Registration Statement and the Preliminary 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 Investor hereby consents to purchase Offered Shares, relied only upon receiving delivery of the Registration Statement, the Prospectus Statement and the representations Preliminary Prospectus, including all documents and warranties of information incorporated by reference therein and amendments thereto, by electronic mail. Investor understands that an investment in the Company contained hereininvolves a high degree of risk for the reasons, among others, set forth under the captions “RISK FACTORS” in the Prospectus.
(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 Preliminary Prospectus and its investment decision, Investor has not relied on (a) any representation or information not set forth in this Agreement, the Registration Statement or the Preliminary Prospectus.
, (4b) Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by Person affiliated with the Company or (c) the fact that would permit an offering of any other Person has decided to invest in 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 the Prospectus, this Agreement or any other materials presented to such Investor in connection with the purchase and sale of the Offered Shares constitutes legal, tax or investment advice. Such Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Investor Shares.
(4) The execution and delivery of this Agreement by Investor and the Offered performance of this Agreement and the consummation by Investor of the transactions contemplated hereby have been duly authorized by all necessary (corporate, partnership or limited liability in the case of a corporation, partnership or limited liability company) action of Investor, and this Agreement, when duly executed and delivered by Investor, will constitute a valid and legally binding instrument, enforceable in accordance with its terms against Investor, except as enforcement hereof may be limited by the effect of 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).
(5) No state, federal or foreign regulatory approvals, permits, licenses or consents or other contractual or legal obligations are required for Investor to enter into this Agreement or purchase the Investor Shares.
(6) Each Investor, if outside the United States of America, will comply with all applicable laws and regulations in each jurisdiction where it purchases, offers, sells or delivers Offered Shares or has in its possession or distributes any offering material, in all cases at its own expense.
(7) From and after obtaining the date knowledge of the sale of the Investor received any information about the existence of this offeringShares contemplated hereby, such Investor has not offeredtaken, pledgedand prior to the public announcement of the transaction (which the Company covenants and agrees shall be no later than 8:30 am on April 17, sold2008) such Investor shall not take, contracted any action that has caused or will cause such Investor to sell, sold any option or contract to purchase, purchased any option or contract to sell, granted any option, right or warrant to purchase, loaned, or otherwise transferred or disposed ofhave, directly or indirectly, sole or agreed to sell any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, entered into effected any swap short sale, whether or other arrangement that transfers not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the Exchange Act) with respect to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, granted any other right (including, without limitation, any put or directly call option) with respect to the Common Stock or with respect to any security that includes, related to or derives any significant part of its value from the Common Stock, whether or not, direct or indirectly, through related partiesin order to hedge its positions in the Investor Shares.
(8) The execution, affiliates delivery and performance by Investor of this Agreement and the consummation by Investor of the transactions contemplated herein do not and shall not (i) result in a violation of Investor’s charter documents, bylaws or other applicable organizational instruments, (ii) conflict with, constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give rise to any rights of termination, amendment, acceleration or cancellation of, any material agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which Investor is a party or is bound, (iii) create or impose any lien, charge or encumbrance on any property of the Investor under any agreement or any commitment to which Investor is party or under which Investor is bound or under which any of its properties or assets are bound, or (iv) result in a violation of any federal, state, local or foreign statute, rule, or regulation, or any order, judgment or decree of any court or governmental agency applicable to Investor or by which any of its properties or assets are bound or affected, except, in the case of clauses (ii), (iii) and (iv), for such conflicts, defaults, terminations, amendments, acceleration, cancellations and violations as would not, individually or in the aggregate, prohibit or otherwise sold “short” or “short against interfere with the box” (as those terms are generally understood) any equity security ability of the Company. Investor covenants that it will notto enter into and perform its obligations under this Agreement in any material respect.
(9) The Company shall not undertake another equity financing of its securities (including, nor will it authorize or permit any Person acting on its behalf but not limited to, engage in any such transactions until following additional issuances pursuant to the ClosingRegistration Statement) prior to April 24, 2008.
Appears in 1 contract
Samples: Securities Purchase Agreement (Agfeed Industries, Inc)
Investor Representations, Warranties and Covenants. Each of the Investors represents Investor, severally and not jointly, represents, warrants and agrees as to itself to the Company that as of the date hereof and the Closing Datefollows:
(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 Investor hereby consents to purchase Offered Shares, relied only upon receiving delivery of the Registration Statement, the Prospectus Statement and the representations Prospectus, including all documents and warranties information incorporated by reference therein and any amendments thereto, by the Company’s filing on the XXXXX database of the Company contained hereinCommission.
(3ii) 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. Investor understands that an investment in the Company involves a high degree of risk for the reasons, among others, set forth under the captions “Risk Factors” in the Prospectus.
(4iii) The execution and delivery of this Agreement by Investor acknowledgesand the performance of this Agreement and the consummation by Investor of the transactions contemplated hereby have been duly authorized by all necessary (corporate, represents partnership or limited liability in the case of a corporation, partnership or limited liability company) action of Investor, and agrees that no action has been or this Agreement, when duly executed and delivered by Investor, will constitute a valid and legally binding instrument, enforceable in accordance with its terms against Investor, except as enforcement hereof may be taken in any jurisdiction outside the United States limited by the Company that would permit an effect of 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).
(iv) No state, federal or foreign regulatory approvals, permits, licenses or consents are required for Investor to enter into this Agreement or purchase the Investor Shares.
(v) From the time Investor became aware of the offering of the Offered Shares, until such time that the Company publicly announces the transactions contemplated by this Agreement (which the Company covenants and agrees shall be no later than 8:30 a.m. Eastern Daylight Time on June 22, 2009), Investor has not taken, and will not take, any action, directly or possession indirectly, to do or distribution agree to do any of offering materials the following with respect to the securities of the Company: (1) to sell any such securities; (2) to effect any short sale, whether or not against the box; (3) to establish any “put equivalent position” (as defined in connection Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)); (4) to acquire or grant any other right (including, without limitation, any put or call option) with respect to the issue Common Stock or with respect to a security that derives any significant part of its value from the Common Stock; or (5) to engage in any other transaction that xxxxxx or may hedge the Investor’s position in the Investor Shares or otherwise transfers the risk of ownership of the Investor Shares in Shares.
(vi) Investor shall not issue any jurisdiction 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 Investor, or (ii) Investor is advised by its counsel that such press release or public announcement is required by law.
(vii) If Investor is outside the United States where action for that purpose is requiredStates, Investor will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers the Investor Shares or has in its possession or distributes any offering material, in all cases at its own expense.
(5viii) Investor understands that nothing in this Agreement or any other materials presented to Investor in connection with the purchase offer and sale of the Offered Investor Shares constitutes legal, tax or investment advice. Investor has consulted such legal, tax and investment advisors of its own as itInvestor, in its sole discretion, has deemed necessary or appropriate in connection with its Investor’s purchase of the Offered Investor Shares.
(6ix) From and after the date Investor received any information about the existence hereby acknowledges that it is not acting as a member of this offering, Investor has not offered, pledged, sold, contracted to sell, sold any option or contract to purchase, purchased any option or contract to sell, granted any option, right or warrant to purchase, loaned, or otherwise transferred or disposed of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, entered into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, or directly or indirectly, through related parties, affiliates or otherwise sold a “short” or “short against the boxgroup” (as those terms are generally understood) any equity security such term is defined in Rule 13d of the Company. Exchange Act) with any other investor, other than funds affiliated with the Investor, in connection with the offering and sale of the Investor covenants Shares.
(x) Investor is a not a “Benefit Plan Investor” as defined in Section 3(42) of the Employee Retirement Income Security Act of 1974 (“ERISA”), which includes an “employee benefit plan” as defined in Section 3(3) of ERISA, that it will notis subject to Part 4 of Title I of ERISA, nor will it authorize a “plan” covered by Internal Revenue Code section 4975, or permit an entity whose underlying assets include plan assets of either of the foregoing.
(xi) There is no broker, finder or other party that is entitled to receive from the Company any Person acting on its behalf to, engage in brokerage or finder’s fee or other fee or commission as a result of any such transactions until following the Closingcontemplated by this Agreement.
Appears in 1 contract
Investor Representations, Warranties and Covenants. Each of the Investors represents Investor, severally and not jointly, represents, warrants and agrees as to itself to the Company that as of the date hereof and the Closing Datefollows:
(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 such Investor enforceable against such 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) Such Investor understands that nothing in this Agreement or any other materials presented to such Investor in connection with the purchase and sale of the Offered Shares constitutes legal, tax or investment advice. Such Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Offered Shares.
(6) From and after the date Investor received any information about the existence of this offering, Investor has not offered, pledged, sold, contracted to sell, sold any option or contract to purchase, purchased any option or contract to sell, granted any option, right or warrant to purchase, loaned, or otherwise transferred or disposed of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, entered into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, or directly or indirectly, through related parties, affiliates or otherwise sold “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. Investor covenants that it will not, nor will it authorize or permit any Person acting on its behalf to, engage in any such transactions until following the Closing.
Appears in 1 contract
