Issuer Representations and Warranties. The Issuer represents and warrants to the Investor, as of the Closing Date, that: a. The Issuer has been duly incorporated as a Delaware corporation and is validly existing and in good standing under the laws of Delaware, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Agreement. b. As of the Closing Date, the Securities will be duly authorized and, when issued and delivered to the Investor against full payment therefor in accordance with the terms of this Agreement, the Securities will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Certificate of Incorporation or the Issuer’s bylaws (each as amended to the Closing Date) or under the General Corporation Law of the State of Delaware. c. This Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Agreement constitutes the valid and binding agreement of the Investor, this Agreement constitutes a valid and binding agreement of the Issuer and is enforceable against the Issuer 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, or (ii) principles of equity, whether considered at law or equity. d. The issuance and sale of the Securities and the compliance by the Issuer with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any of the property or assets of the Issuer is subject that would reasonably be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of the Issuer and its subsidiaries, taken as a whole, or materially affect the validity of the Securities or the legal authority of the Issuer to enter into and perform its obligations under this Agreement (a “Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of the Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties that would reasonably be expected to have a Material Adverse Effect. e. Assuming the accuracy of the representations and warranties of the Investor set forth herein, the Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the Securities pursuant to this Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, and (iii) consents, waivers, authorizations, orders, notices or filings, the failure of which to obtain or make, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. The Issuer has not received any written communication from a governmental authority that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. h. Assuming the accuracy of the Investor’s representations and warranties set forth in Section 6 of this Agreement, no registration under the Securities Act is required for the offer and sale of the Securities by the Issuer to the Investor. i. Neither the Issuer nor any person acting on its behalf has offered or sold the Securities by any form of general solicitation or general advertising and the Securities 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. j. The Issuer is not under any obligation to pay any broker’s fee or commission in connection with the sale of the Securities to the Investor. k. As of the date hereof, the total authorized capital stock of the Issuer is (i) 4,600,000,000 shares of Common Stock, of which 244,220,336 are issued and outstanding as of the date of this Agreement, and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this Agreement. All issued and outstanding shares of Common Stock and shares of Preferred Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Issuer any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred Stock. l. The Issuer represents and warrants as of the date hereof, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into by the Issuer (an “Other Agreement”) will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) by the Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of securities thereunder. If, and whenever on or after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide prior written notice thereof to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase Agreements. m. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.

Appears in 4 contracts

Samples: Securities Purchase Agreement (TLG Acquisition One Corp.), Securities Purchase Agreement (TLG Acquisition One Corp.), Securities Purchase Agreement (TLG Acquisition One Corp.)

Issuer Representations and Warranties. The Issuer represents and warrants to the ~~Investor, as of the Closing Date,~~ Investor that: a. The Issuer has been duly incorporated as a Delaware corporation and is validly existing and in good standing under the laws of Delaware, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Agreement. b. As of the Closing Date, the Securities will be duly authorized and, when issued and delivered to the Investor against full payment therefor in accordance with the terms of this Agreement, the Securities will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Certificate of Incorporation or the Issuer’s bylaws (each as amended to the Closing Date) or under the General Corporation Law of the State of Delaware. c. This Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Agreement constitutes the valid and binding agreement of the Investor, this Agreement constitutes a valid and binding agreement of the Issuer and is enforceable against the Issuer 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, or (ii) principles of equity, whether considered at law or equity. d. The issuance and sale of the Securities and the compliance by the Issuer with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any of the property or assets of the Issuer is subject that would reasonably be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of the Issuer and its subsidiaries, taken as a whole, or materially affect the validity of the Securities or the legal authority of the Issuer to enter into and perform its obligations under this Agreement (a “Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of the Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties that would reasonably be expected to have a Material Adverse Effect. e. Assuming the accuracy of the representations and warranties of the Investor set forth herein, the Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the Securities pursuant to this Agreement, other than (i) filings with the U.S. Securities and Exchange Commission (the “SEC”), (ii) filings required by applicable state securities laws, and (iii) consents, waivers, authorizations, orders, notices or filings, the failure of which to obtain or make, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. The Issuer has not received any written communication from a governmental authority that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. h. Assuming the accuracy of the Investor’s representations and warranties set forth in Section 6 of this Agreement, no registration under the Securities Act is required for the offer and sale of the Securities by the Issuer to the Investor. i. Neither the Issuer nor any person acting on its behalf has offered or sold the Securities by any form of general solicitation or general advertising and the Securities 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. j. The Issuer is not under any obligation to pay any broker’s fee or commission in connection with the sale of the Securities to the Investor. k. As of the date hereof, the total authorized capital stock of the Issuer is (i) 4,600,000,000 shares of Common Stock, of which 244,220,336 are issued and outstanding as of the date of this ~~Agreement~~Agreement and as of the Closing and prior to the Closing, and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this ~~Agreement~~Agreement and as of the Closing and prior to the Closing. All issued and outstanding shares of Common Stock and shares of Preferred Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Issuer any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred Stock. l. The Issuer represents and warrants as of the date hereof, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into by the Issuer (an “Other Agreement”) will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) by the Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of securities thereunder. If, and whenever on or after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide prior written notice thereof to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase Agreements. m. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.

Appears in 3 contracts

Samples: Securities Purchase Agreement (TLG Acquisition One Corp.), Securities Purchase Agreement (TLG Acquisition One Corp.), Securities Purchase Agreement (TLG Acquisition One Corp.)

Issuer Representations and Warranties. The Issuer represents and warrants to the ~~Investor, as of the Closing Date,~~ Subscriber that: a. (a) The Issuer has been duly ~~incorporated as a Delaware corporation and~~ incorporated, is validly existing and is in good standing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its properties and conduct its business as presently ~~conducted and to enter into, deliver and perform its obligations under this Agreement~~conducted. b. As of the Closing Date, the Securities will be duly authorized and, when issued and delivered to the Investor against full payment therefor in accordance with the terms of this Agreement, the Securities will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Certificate of Incorporation or the Issuer’s bylaws (~~each as amended to the Closing Date~~b) ~~or under the General Corporation Law of the State of Delaware. c.~~ This Subscription Agreement has been duly authorized, executed and delivered by the Issuer ~~and, assuming that this Agreement constitutes the valid and binding agreement of the Investor, this Agreement constitutes a valid and binding agreement of the Issuer~~ and is enforceable ~~against the Issuer~~ 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, or and (ii) principles of equity, whether considered at law or equity. d. (c) The ~~issuance~~ execution, delivery and ~~sale~~ performance of ~~the Securities and the compliance~~ this Subscription Agreement by the Issuer ~~with all of the provisions of this Agreement~~ and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any of the property or assets of the Issuer is ~~subject that~~ subject, which would ~~reasonably be expected to~~ have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of the Issuer ~~and its subsidiaries, taken as a whole,~~ (an “Issuer Material Adverse Effect”) or materially affect the validity of the ~~Securities~~ Shares or the legal authority of the Issuer to ~~enter into and perform its obligations under~~ comply in all material respects with the terms of this ~~Agreement (a “Material Adverse Effect”)~~Subscription Agreement; (ii) result in any violation of the provisions of the organizational documents of the Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties that would ~~reasonably be expected to~~ have a an Issuer Material Adverse ~~Effect~~Effect or the legal authority of the Issuer to comply with this Subscription Agreement. ~~e. Assuming the accuracy of the representations and warranties of the Investor set forth herein,~~ (d) There are no securities or instruments issued by or to which the Issuer is ~~not required~~ a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Shares or (ii) the securities to ~~obtain~~ be issued pursuant to any ~~consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or~~ other ~~federal, state, local or other governmental authority, self-regulatory organization or other person~~ subscription agreement with investors that have agreed to purchase securities in connection with the ~~issuance of~~ Transaction, that have not been or will be waived on or prior to the Securities pursuant to this Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, and (iii) consents, waivers, authorizations, orders, notices or filings, the failure of which to obtain or make, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse EffectClosing Date. f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. (e) The Issuer has not ~~received~~ entered into any ~~written communication from a governmental authority that alleges that the Issuer is not in compliance with~~ agreement or ~~is in default~~ arrangement entitling any agent, broker, investment banker, financial advisor or ~~violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected~~ other person to have, individually or in the aggregate, a Material Adverse Effect. h. Assuming the accuracy of the Investor’s representations and warranties set forth in Section 6 of this Agreement, no registration under the Securities Act is required for the offer and sale of the Securities by the Issuer to the Investor. i. Neither the Issuer nor any person acting on its behalf has offered or sold the Securities by any form of general solicitation or general advertising and the Securities 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. j. The Issuer is not under any obligation to pay any broker’s or finder’s fee or any other commission or similar fee in connection with the ~~sale of~~ transactions contemplated by this Subscription Agreement for which the ~~Securities to the Investor~~Subscriber could become liable. ~~k. As of~~ (f) The Issuer understands that the ~~date hereof, the total authorized capital stock of the Issuer is (i) 4,600,000,000 shares of Common Stock, of which 244,220,336 are issued~~ foregoing representations and ~~outstanding as of the date of this Agreement,~~ warranties shall be deemed material and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this Agreement. All issued and outstanding shares of Common Stock and shares of Preferred Stock to have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted relied upon by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Issuer any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred StockSubscriber. l. The Issuer represents and warrants as of the date hereof, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into by the Issuer (an “Other Agreement”) will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) by the Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of securities thereunder. If, and whenever on or after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide prior written notice thereof to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase Agreements. m. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.

Appears in 2 contracts

Samples: Subscription Agreement (Federal Street Acquisition Corp.), Subscription Agreement (Federal Street Acquisition Corp.)

Issuer Representations and Warranties. ~~The~~ Issuer represents and warrants to the ~~Investor, as of the Closing Date,~~ Investor that: ~~a. The~~ (a) Issuer ~~has been~~ is a corporation duly ~~incorporated as a Delaware corporation and is~~ incorporated, validly existing and in good standing under the laws of the State of Delaware~~, with~~ . Issuer has all power (corporate ~~power~~ or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. b. (b) As of the Closing Date, the ~~Securities~~ Committed Shares will be duly authorized and, when issued and delivered to the Investor against full payment therefor in accordance with the terms of this Subscription Agreement, the ~~Securities~~ Committed Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under ~~the Certificate of Incorporation or the~~ Issuer’s ~~bylaws~~ amended and restated certificate of incorporation (~~each~~ as ~~amended to the Closing Date) or under the General Corporation Law~~ in effect at such time of ~~the State of Delaware~~issuance). c. (c) This Subscription Agreement has been duly authorized, executed and delivered by ~~the~~ Issuer and, assuming that this Subscription Agreement constitutes the valid and binding agreement of the Investor, this Subscription Agreement ~~constitutes a valid and binding agreement of the Issuer and~~ is enforceable against ~~the~~ Issuer 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, or (ii) principles of equity, whether considered at law or equity. d. (d) The issuance and sale by Issuer of the ~~Securities~~ Shares pursuant to this Subscription Agreement and the compliance by ~~the~~ Issuer with all of the provisions of this Subscription Agreement ~~and the consummation of the transactions contemplated herein~~ will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of ~~the~~ Issuer or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which ~~the~~ Issuer or any of its subsidiaries is a party or by which ~~the~~ Issuer or any of its subsidiaries is bound or to which any of the property or assets of ~~the~~ Issuer is subject that would reasonably be expected to have a material adverse effect on the business, ~~properties,~~ financial ~~condition, stockholders’ equity~~ condition or results of operations of ~~the~~ Issuer and its subsidiaries, taken as a ~~whole~~whole (a “Material Adverse Effect”), or materially affect the validity of the ~~Securities~~ Shares or the legal authority of ~~the~~ Issuer to ~~enter into and perform~~ comply in all material respects with its obligations under this ~~Agreement (a “Material Adverse Effect”)~~Subscription Agreement; (ii) result in any violation of the provisions of the organizational documents of ~~the~~ Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over ~~the~~ Issuer or any of its properties that would reasonably be expected to have a Material Adverse ~~Effect~~Effect or materially affect the validity of the Shares or the legal authority of Issuer to comply in all material respects with its obligations under this Subscription Agreement. ~~e. Assuming~~ (e) As of their respective filing dates, all reports required to be filed by Issuer with the ~~accuracy~~ Securities and Exchange Commission (the “SEC”) since December 14, 2021 (the “SEC Reports”) complied in all material respects with the applicable requirements of the ~~representations~~ Securities Act of 1933, as amended (the “Securities Act”), and ~~warranties~~ the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the ~~Investor set forth herein~~SEC promulgated thereunder, none of the SEC Reports, when filed, or, if amended, as of the date of such amendment, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments in comment letters received by Issuer from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports. (f) Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the performance by Issuer of the obligations, including the issuance of the ~~Securities~~ Shares, pursuant to this Subscription Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, ~~and~~ (iii) ~~consents~~the filings required in accordance with Section 13 of this Subscription Agreement, ~~waivers~~(iv) those required by the Nasdaq, ~~authorizations~~including with respect to obtaining approval of Issuer’s stockholders, ~~orders, notices or filings,~~ and (v) the failure of which to obtain ~~or make,~~ would not be reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. The Issuer has not received any written communication from a governmental authority that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. h. (g) Assuming the accuracy of the Investor’s representations and warranties set forth in Section 6 of this Subscription Agreement, no registration under the Securities ~~Act~~ Act, is required for the offer and sale of the ~~Securities~~ Shares by ~~the~~ Issuer to the Investor. i. (h) Neither ~~the~~ Issuer nor any person acting on its behalf has offered or sold the ~~Securities~~ Committed Shares by any form of general solicitation or general advertising ~~and~~ in violation of the Securities ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of~~Act. (i) As of the date hereof, the ~~Securities Act or any state securities laws~~issued and outstanding shares of Class A common stock of Issuer are registered pursuant to Section 12(b) of the Exchange Act. ~~j. The~~ (j) Other than certain placement agents, Issuer is not under any obligation to pay any broker’s fee or commission in connection with the sale of the ~~Securities to the Investor~~Committed Shares. k. As of the date hereof, the total authorized capital stock of the Issuer is (i) 4,600,000,000 shares of Common Stock, of which 244,220,336 are issued and outstanding as of the date of this Agreement, and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this Agreement. All issued and outstanding shares of Common Stock and shares of Preferred Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Issuer any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred Stock. l. The Issuer represents and warrants as of the date hereof, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into by the Issuer (an “Other Agreement”) will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) by the Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of securities thereunder. If, and whenever on or after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide prior written notice thereof to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase Agreements. m. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.

Appears in 2 contracts

Samples: Subscription Agreement (Power & Digital Infrastructure Acquisition II Corp.), Subscription Agreement (Montana Technologies Corp.)

Issuer Representations and Warranties. ~~The~~ Issuer represents and warrants to the ~~Investor, as of the Closing Date,~~ Backstop Investor that: ~~a. The~~ (a) Issuer ~~has been~~ is duly ~~incorporated as a Delaware corporation and is~~ incorporated, validly existing and in good standing under the laws of Delaware~~, with~~ . Issuer has all power (corporate ~~power~~ or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Backstop Subscription Agreement. b. (b) As of the Closing Date, the ~~Securities~~ Backstop Shares will be duly authorized and, when issued and delivered to the Backstop Investor against full payment therefor in accordance with the terms of this Backstop Subscription Agreement, the ~~Securities~~ Backstop Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under ~~the Certificate of Incorporation or the~~ Issuer’s ~~bylaws~~ certificate of incorporation (~~each~~ as ~~amended to the Closing Date~~in effect at such time of issuance) or under the Delaware General Corporation ~~Law of the State of Delaware~~Law. c. (c) This Backstop Subscription Agreement has been duly authorized, executed and delivered by ~~the~~ Issuer and, assuming that this Backstop Subscription Agreement constitutes the valid and binding agreement of the Backstop Investor, this Backstop Subscription Agreement ~~constitutes a valid and binding agreement of the Issuer and~~ is enforceable against ~~the~~ Issuer 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, or (ii) principles of equity, whether considered at law or equity. d. (d) The issuance and sale by Issuer of the ~~Securities and the compliance by the Issuer with all of the provisions of~~ Backstop Shares pursuant to this Backstop Subscription Agreement ~~and the consummation of the transactions contemplated herein~~ will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of ~~the~~ Issuer or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which ~~the~~ Issuer or any of its subsidiaries is a party or by which ~~the~~ Issuer or any of its subsidiaries is bound or to which any of the property or assets of ~~the~~ Issuer is subject that would reasonably be expected to have a material adverse effect on the business, ~~properties,~~ financial ~~condition, stockholders’ equity~~ condition or results of operations of ~~the~~ Issuer and its subsidiaries, taken as a ~~whole~~whole (a “Material Adverse Effect”), or materially affect the validity of the ~~Securities~~ Backstop Shares or the legal authority of ~~the~~ Issuer to ~~enter into and perform~~ comply in all material respects with its obligations under this ~~Agreement (a “Material Adverse Effect”)~~Backstop Subscription Agreement; (ii) result in any violation of the provisions of the organizational documents of ~~the~~ Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over ~~the~~ Issuer or any of its properties that would reasonably be expected to have a Material Adverse ~~Effect~~Effect or materially affect the validity of the Backstop Shares or the legal authority of Issuer to comply in all material respects with its obligations under this Backstop Subscription Agreement. ~~e. Assuming~~ (e) As of their respective filing dates, all reports required to be filed by Issuer with the ~~accuracy~~ U.S. Securities and Exchange Commission (the “SEC”) since December 10, 2021 (the “SEC Reports”) complied in all material respects with the applicable requirements of the ~~representations~~ Securities Exchange Act of 1934, as amended (the “Exchange Act”), and ~~warranties~~ the rules and regulations of the ~~Investor set forth herein~~SEC promulgated thereunder. As of the date hereof, there are no material outstanding or unresolved comments in comment letters received by Issuer from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports. (f) Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the ~~Securities~~ Backstop Shares pursuant to this Backstop Subscription Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, ~~and~~ (iii) ~~consents~~the filings required in accordance with Section 13 of this Backstop Subscription Agreement; (iv) those required by The Nasdaq Stock Market LLC, ~~waivers~~including with respect to obtaining approval of Issuer’s stockholders, ~~authorizations, orders, notices or filings,~~ and (v) the failure of which to obtain ~~or make,~~ would not be reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. ~~f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning~~ (g) As of the ~~Investment Company Act of 1940~~date hereof, ~~as amended. g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. The~~ Issuer has not received any written communication from a governmental authority that alleges that ~~the~~ Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. h. (h) Assuming the accuracy of the Backstop Investor’s representations and warranties set forth in Section 6 of this Backstop Subscription Agreement, no registration under the Securities Act of 1933, as amended (the “Securities Act”), is required for the offer and sale of the ~~Securities~~ Backstop Shares by ~~the~~ Issuer to the Backstop Investor. i. (i) Neither ~~the~~ Issuer nor any person acting on its behalf has offered or sold the ~~Securities~~ Backstop Shares by any form of general solicitation or general advertising ~~and~~ in violation of the Securities ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of~~Act. (j) As of the date hereof, the ~~Securities Act or any state securities laws~~issued and outstanding shares of Issuer’s Class A common stock are registered pursuant to Section 12(b) of the Exchange Act. ~~j. The~~ (k) Issuer is not under any obligation to pay any broker’s fee or commission in connection with the sale of the ~~Securities to the Investor~~Backstop Shares. k. As of the date hereof, the total authorized capital stock of the Issuer is (i) 4,600,000,000 shares of Common Stock, of which 244,220,336 are issued and outstanding as of the date of this Agreement, and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this Agreement. All issued and outstanding shares of Common Stock and shares of Preferred Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Issuer any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred Stock. l. The Issuer represents and warrants as of the date hereof, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into by the Issuer (an “Other Agreement”) will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) by the Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of securities thereunder. If, and whenever on or after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide prior written notice thereof to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase Agreements. m. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (BurTech Acquisition Corp.), Backstop Subscription Agreement (BurTech Acquisition Corp.)

Issuer Representations and Warranties. The Issuer represents and warrants to the Investor, as of each Closing Date with respect to the Closing on that Closing Date, that: a. The Issuer has been duly incorporated as a Delaware corporation and is validly existing and in good standing under the laws of Delaware, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Agreement. b. As of ~~the~~ that Closing Date, the Securities will be duly authorized and, when issued and delivered to the Investor against full payment therefor in accordance with the terms of this Agreement, the Securities will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Certificate of Incorporation or the Issuer’s bylaws (each as amended to ~~the~~ that Closing Date) or under the General Corporation Law of the State of Delaware. c. This Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Agreement constitutes the valid and binding agreement of the Investor, this Agreement constitutes a valid and binding agreement of the Issuer and is enforceable against the Issuer 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, or (ii) principles of equity, whether considered at law or equity. d. The issuance and sale of the Securities and the compliance by the Issuer with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any of the property or assets of the Issuer is subject that would reasonably be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of the Issuer and its subsidiaries, taken as a whole, or materially affect the validity of the Securities or the legal authority of the Issuer to enter into and perform its obligations under this Agreement (a “Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of the Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties that would reasonably be expected to have a Material Adverse Effect. e. Assuming the accuracy of the representations and warranties of the Investor set forth herein, the Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the Securities pursuant to this Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, and (iii) consents, waivers, authorizations, orders, notices or filings, the failure of which to obtain or make, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. The Issuer has not received any written communication from a governmental authority that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. h. Assuming the accuracy of the Investor’s representations and warranties set forth in Section 6 of this Agreement, no registration under the Securities Act is required for the offer and sale of the Securities by the Issuer to the Investor. i. Neither the Issuer nor any person acting on its behalf has offered or sold the Securities by any form of general solicitation or general advertising and the Securities 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. j. The Issuer is not under any obligation to pay any broker’s fee or commission in connection with the sale of the Securities to the Investor. k. As of the date hereof, the total authorized capital stock of the Issuer is (i) 4,600,000,000 shares of Common Stock, of which 244,220,336 are issued and outstanding as of the date of this ~~Agreement~~Agreement and as of the Closing and prior to the Closing, and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this ~~Agreement~~Agreement and as of the Closing and prior to the Closing. All issued and outstanding shares of Common Stock and shares of Preferred Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Issuer any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred Stock. l. The Issuer represents and warrants as of the date hereof, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into by the Issuer (an “Other Agreement”) will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) by the Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of securities thereunder. If, and whenever on or after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide prior written notice thereof to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase Agreements. m. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.

Appears in 2 contracts

Samples: Securities Purchase Agreement (TLG Acquisition One Corp.), Securities Purchase Agreement (TLG Acquisition One Corp.)

Issuer Representations and Warranties. The Issuer represents and warrants to the ~~Investor, as of the Closing Date,~~ Investor that: a. The Issuer ~~has been~~ is an exempted company duly ~~incorporated as a Delaware corporation and is~~ incorporated, validly existing and in good standing under the laws of ~~Delaware, with~~ the Cayman Islands. The Issuer has all power (corporate ~~power~~ or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. b. As of the Closing Date, subject to the ~~Securities~~ receipt of the Subscription Amount in accordance with the terms of this Subscription Agreement and registration on the Issuer’s register of members, the Shares will be duly authorized and, when issued and delivered to the Investor against full payment therefor in accordance with the terms of this ~~Agreement~~Subscription Agreement and registered on the Issuer’s register of members, the ~~Securities~~ Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the ~~Certificate of Incorporation or the~~ Issuer’s ~~bylaws~~ memorandum and articles of association (~~each~~ as may be amended and/or restated from time to time) (the “Issuer’s Charter”) in effect on the Closing ~~Date)~~ Date or under the ~~General Corporation Law~~ Companies Act (as revised) of the ~~State of Delaware~~Cayman Islands. c. This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding agreement of SPAC and the Investor, this Subscription Agreement ~~constitutes a valid and binding agreement of the Issuer and~~ is enforceable against the Issuer 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, or (ii) principles of equity, whether considered at law or equity. d. The issuance and sale of the ~~Securities~~ Shares and the compliance by the Issuer with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer ~~or any of its subsidiaries~~ pursuant to the terms of ~~(i)~~ any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer ~~or any of its subsidiaries~~ is a party or by which the Issuer ~~or any of its subsidiaries~~ is bound or to which any of the property or assets of the Issuer is subject that would reasonably be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of the Issuer and its subsidiaries, taken as a whole, or materially affect the validity of the Securities or the legal authority ability of the Issuer to ~~enter into and perform its obligations under~~ timely comply in all material respects with the terms of this Subscription Agreement (a an “Issuer Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of the Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect. e. Assuming the accuracy of the representations and warranties of the Investor set forth herein, the Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the Securities pursuant to this Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, and (iii) consents, waivers, authorizations, orders, notices or filings, the failure of which to obtain or make, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. The Issuer has not received any written communication from a governmental authority that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. h. Assuming the accuracy of the Investor’s representations and warranties set forth in Section ~~6 of this Agreement~~6, no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the ~~Securities~~ Shares by the Issuer to the ~~Investor. i. Neither the Issuer nor any person acting on its behalf has~~ Investor hereunder. The Shares (i) were not offered ~~or sold the Securities~~ by any form of general solicitation or general advertising and (ii) to the ~~Securities~~ Issuer’s knowledge are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~j. The~~ f. As of their respective filing dates, each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by Issuer ~~is not under any obligation to pay any broker’s fee or commission in connection~~ with the ~~sale~~ SEC prior to the date of this Subscription Agreement (the “Issuer SEC Documents”) complied in all material respects with the requirements of the ~~Securities~~ Exchange Act applicable to the ~~Investor~~SEC Documents and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents. None of the Issuer SEC Documents filed under the Exchange Act, contained, when filed or, if amended prior to the date of this Subscription Agreement, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. A copy of each Issuer SEC Document is available via the SEC’s XXXXX system. There are no material outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the Issuer SEC Documents. k. g. As of the date ~~hereof~~of this Subscription Agreement, the ~~total~~ authorized share capital ~~stock~~ of issuer consists of 5,000,000,000 ordinary shares of issuer, par value $0.00001 per share. All outstanding ordinary shares of issuer are duly authorized, validly issued, fully paid and non-assessable, are not subject to preemptive rights and are held free and clear of all liens, other than transfer restrictions under applicable securities laws and the Issuer’s Charter. Except as set forth above and pursuant to the other subscription agreements, the Transaction Agreement and the other agreements and arrangements referred to therein or in the Issuer ~~is (i) 4,600,000,000 shares of Common Stock~~SEC Documents, ~~of which 244,220,336 are issued and outstanding~~ as of the date of this Subscription Agreement, and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this Agreement. All issued and outstanding shares of Common Stock and shares of Preferred Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, ~~warrants~~warrants or other rights to subscribe for, ~~rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to~~ purchase or acquire from the Issuer any ordinary shares of ~~Common Stock~~ Issuer or ~~Preferred Stock~~other equity interests in Issuer, or ~~any~~ securities convertible into or exchangeable or exercisable for ~~shares of Common Stock or Preferred Stock. l. The Issuer represents and warrants as~~ such equity interests. As of the date ~~hereof~~of this Subscription Agreement, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into there are no securities issued by the Issuer ~~(an “Other Agreement”)~~ or instruments to which the Issuer is a party containing anti-dilution or similar provisions that will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) be triggered by the ~~Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to~~ transactions contemplated by the ~~regulatory requirements of such investor~~ Transaction Agreement or ~~its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and~~ the issuance of ~~securities thereunder. If, and whenever~~ the Shares pursuant to this Subscription Agreement or the Class A Ordinary Shares of the Issuer issued pursuant to the other subscription agreements that have not been or will not be validly waived on or ~~after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide~~ prior ~~written notice thereof~~ to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit closing of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase AgreementsTransaction. m. h. Except for such matters as have not had and would not be reasonably likely to ~~have, individually or in the aggregate,~~ have a Material Adverse Effect~~, as of the date hereof~~, there is no (i) action, suit, ~~action~~claim or other proceeding, ~~proceeding~~ in each case by or ~~arbitration~~ before ~~a governmental authority or arbitrator~~ any Governmental Authority pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.

Appears in 2 contracts

Samples: Subscription Agreement (Cheche Group Inc.), Subscription Agreement (Prime Impact Acquisition I)

Issuer Representations and Warranties. The Issuer represents and warrants to the ~~Investor, as of the Closing Date,~~ Investor that: a. The Issuer ~~has been~~ is an exempted company duly ~~incorporated as a Delaware corporation and is~~ incorporated, validly existing and in good standing under the laws of ~~Delaware~~Jersey, ~~with~~ Channel Islands. The Issuer has all power (corporate ~~power~~ or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. b. As of the Closing Date, subject to the ~~Securities~~ receipt of the Purchase Price in accordance with the terms of this Subscription Agreement, the conversion of the Note in accordance with its terms and registration on the Issuer’s register of members, the Shares will be duly authorized and, when issued and delivered to the Investor ~~against full payment therefor~~ upon conversion of the Note in accordance with its terms and registered on the ~~terms~~ Issuer’s register of ~~this Agreement~~members, the ~~Securities~~ Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the ~~Certificate of Incorporation or the~~ Issuer’s ~~bylaws~~ memorandum and articles of association (~~each~~ as may be amended and/or restated from time to time) in effect on the Closing ~~Date)~~ Date or under the ~~General Corporation Law of the State of Delaware~~Jersey Companies Law. c. This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding agreement of the Investor, this Subscription Agreement ~~constitutes a valid and binding agreement of the Issuer and~~ is enforceable against the Issuer 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, or (ii) principles of equity, whether considered at law or equity. d. The issuance and sale of the ~~Securities~~ Note and, upon conversion thereof, the Shares, and the compliance by the Issuer with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer ~~or any of its subsidiaries~~ pursuant to the terms of ~~(i)~~ any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer ~~or any of its subsidiaries~~ is a party or by which the Issuer ~~or any of its subsidiaries~~ is bound or to which any of the property or assets of the Issuer is subject that would reasonably be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of the Issuer and its subsidiaries, taken as a whole, or materially affect the validity of the Securities or the legal authority ability of the Issuer to ~~enter into and perform its obligations under~~ timely comply in all material respects with the terms of this Subscription Agreement (a an “Issuer Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of the Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect. e. Assuming the accuracy of the representations and warranties of the Investor set forth herein, the Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the Securities pursuant to this Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, and (iii) consents, waivers, authorizations, orders, notices or filings, the failure of which to obtain or make, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. The Issuer has not received any written communication from a governmental authority that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. h. Assuming the accuracy of the Investor’s representations and warranties set forth in Section ~~6 of this Agreement~~6, no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the ~~Securities~~ Note by the Issuer to the ~~Investor. i. Neither the Issuer nor any person acting on its behalf has~~ Investor hereunder. The Note (i) was not offered ~~or sold the Securities~~ by any form of general solicitation or general advertising and (ii) to the ~~Securities~~ Issuer’s knowledge are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. j. The Issuer is not under any obligation to pay any broker’s fee or commission in connection with the sale of the Securities to the Investor. k. As of the date hereof, the total authorized capital stock of the Issuer is (i) 4,600,000,000 shares of Common Stock, of which 244,220,336 are issued and outstanding as of the date of this Agreement, and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this Agreement. All issued and outstanding shares of Common Stock and shares of Preferred Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Issuer any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred Stock. l. The Issuer represents and warrants as of the date hereof, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into by the Issuer (an “Other Agreement”) will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) by the Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of securities thereunder. If, and whenever on or after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide prior written notice thereof to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase Agreements. m. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.

Appears in 2 contracts

Samples: Subscription Agreement (Crown LNG Holdings LTD), Subscription Agreement (Catcha Investment Corp)

Issuer Representations and Warranties. ~~The~~ Issuer represents and warrants to the ~~Investor, as of the Closing Date,~~ Investor that: ~~a. The~~ (a) Issuer ~~has been duly incorporated as~~ is a Delaware corporation ~~and is~~ duly incorporated, validly existing and in good standing under the laws of the State of Delaware~~, with~~ . Issuer has all power (corporate ~~power~~ or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. b. (b) As of the Closing Date, the ~~Securities~~ Shares will be duly authorized and, when issued and delivered to the Investor against full payment therefor in accordance with the terms of this Subscription Agreement, the ~~Securities~~ Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under ~~the Certificate of Incorporation or the~~ Issuer’s ~~bylaws~~ certificate of incorporation (~~each~~ as ~~amended to the Closing Date~~in effect at such time of issuance) or under the Delaware General Corporation ~~Law of the State of Delaware~~Law. c. (c) This Subscription Agreement has been duly authorized, executed and delivered by ~~the~~ Issuer and, assuming that this Subscription Agreement constitutes the valid and binding agreement of the Investor, this Subscription Agreement ~~constitutes a valid and binding agreement of the Issuer and~~ is enforceable against ~~the~~ Issuer 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, or (ii) principles of equity, whether considered at law or equity. d. (d) The issuance and sale by Issuer of the ~~Securities and the compliance by the Issuer with all of the provisions of~~ Shares pursuant to this Subscription Agreement ~~and the consummation of the transactions contemplated herein~~ will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of ~~the~~ Issuer or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which ~~the~~ Issuer or any of its subsidiaries is a party or by which ~~the~~ Issuer or any of its subsidiaries is bound or to which any of the property or assets of ~~the~~ Issuer is subject that would reasonably be expected to have a material adverse effect on the business, ~~properties,~~ financial ~~condition, stockholders’ equity~~ condition or results of operations of ~~the~~ Issuer and its subsidiaries, taken as a ~~whole~~whole (a “Material Adverse Effect”), or materially affect the validity of the ~~Securities~~ Shares or the ~~legal authority~~ ability of ~~the~~ Issuer to ~~enter into and perform~~ comply in all material respects with its obligations under this ~~Agreement (a “Material Adverse Effect”)~~Subscription Agreement; (ii) result in any violation of the provisions of the organizational documents of ~~the~~ Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over ~~the~~ Issuer or any of its properties that would reasonably be expected to have a Material Adverse ~~Effect~~Effect or materially affect the validity of the Shares or the ability of Issuer to comply in all material respects with its obligations under this Subscription Agreement. e. (e) As of their respective filing dates, all reports required to be filed by Issuer with the U.S. Securities and Exchange Commission (the “SEC”) since its initial public offering (the “SEC Reports”) complied in all material respects with the applicable requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the SEC promulgated thereunder. None of the SEC Reports filed under the Exchange Act included, when filed or, if amended, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that Issuer makes no such representation or warranty with respect to any registration statement or any proxy statement/prospectus to be filed by Issuer with respect to the Transaction. Issuer has timely filed with the SEC each SEC Report that Issuer was required to file with the SEC. There are no material outstanding or unresolved comments in comment letters received by Issuer from the SEC (including from the staff of the Division of Corporation Finance of the SEC) with respect to any of the SEC Reports. (f) Assuming the accuracy of the representations and warranties of the ~~Investor set forth herein~~Investor, ~~the~~ Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the ~~Securities~~ Acquired Shares pursuant to this Subscription Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, ~~and~~ (iii) ~~consents~~the filings required in accordance with the terms of this Subscription Agreement; (iv) those required by The New York Stock Exchange (“NYSE”), ~~waivers~~including with respect to obtaining approval of Issuer’s stockholders, ~~authorizations, orders, notices or filings,~~ and (v) the failure of which to obtain ~~or make,~~ would not be reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. ~~f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. g. The~~ (g) Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. ~~The~~ Issuer has not received any written communication from a governmental authority or the NYSE that alleges that ~~the~~ Issuer is not in compliance with or is in default or violation of any applicable law, except where such ~~non-compliance~~noncompliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. h. Assuming the accuracy of the Investor’s representations and warranties set forth in Section 6 of this Agreement, no registration under the Securities Act is required for the offer and sale of the Securities by the Issuer to the Investor. i. Neither the Issuer nor any person acting on its behalf has offered or sold the Securities by any form of general solicitation or general advertising and the Securities 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. j. The Issuer is not under any obligation to pay any broker’s fee or commission in connection with the sale of the Securities to the Investor. k. As of the date hereof, the total authorized capital stock of the Issuer is (ih) 4,600,000,000 shares of Common Stock, of which 244,220,336 are issued and outstanding as of the date of this Agreement, and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this Agreement. All issued and outstanding shares of Common Stock and shares of Preferred Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Issuer any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred Stock. l. The Issuer represents and warrants as of the date hereof, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into by the Issuer (an “Other Agreement”) will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) by the Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of securities thereunder. If, and whenever on or after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide prior written notice thereof to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase Agreements. m. Except for such matters as have not had and would not reasonably be ~~reasonably likely~~ expected to ~~have, individually or in the aggregate,~~ have a Material Adverse Effect~~, as of the date hereof~~, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of ~~the~~ Issuer, threatened in writing against ~~the~~ Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental ~~entity~~ authority or arbitrator outstanding against ~~the~~ Issuer. (i) The authorized share capital of the Issuer consists, as of the date hereof and as of immediately prior to the closing date of the Transaction, of 30,000,000 shares of common stock, 7,051,084 of which are issued and outstanding, including 5,417,193 shares of common stock subject to possible redemption. (j) Issuer has not entered into any agreement with any Other Investors relating to such Other Investors’ purchase of the Shares other than the Other Subscription Agreements entered into with such Other Investors. The Other Subscription Agreements (and any amendments thereto) reflect the same purchase price per Share and other material terms with respect to the purchase of the Shares are no more favorable to such Other Investor thereunder than the terms of this Subscription Agreement (other than terms particular to the regulatory requirements of such Other Investor or its affiliates or related funds). (k) The Investor, in no circumstances, will be required to pay, reimburse or otherwise be liable for any portion of the fees paid by Issuer to the Placement Agent (as defined below) or such similar fees. (l) The issued and outstanding Shares are registered pursuant to Section 12(b) of the Exchange Act and are currently listed for trading on the Nasdaq Stock Market. There is no suit, action, proceeding or investigation pending or, to the knowledge of Issuer, threatened against Issuer by Nasdaq or the SEC with respect to any intention by such entity to deregister the Shares or prohibit or terminate the listing of the Shares on Nasdaq. Issuer has taken no action that is designed to terminate or is reasonably expected to result in the termination of the registration of the Shares under the Exchange Act or the listing of the Shares on Nasdaq and is in compliance in all material respects with the listing requirements of Nasdaq. (m) Issuer has provided the Investor with a true and correct copy of the Transaction Agreement as in effect on the date hereof. (n) There are no securities or instruments issued by or to which Issuer is a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Acquired Shares, (ii) the shares to be issued pursuant to any Other Subscription Agreement or (iii) the shares to be issued pursuant to the Transaction, in each case, that have not been or will not be validly waived on or prior to the closing date of the Transaction.

Appears in 1 contract

Samples: Subscription Agreement (Mountain Crest Acquisition Corp. III)

Issuer Representations and Warranties. ~~The~~ Issuer represents and warrants to ~~the Investor, as of the Closing Date,~~ Investor that: ~~a. The~~ (a) Issuer ~~has been~~ is an exempted company duly ~~incorporated as a Delaware corporation and is~~ incorporated, validly existing and in good standing under the laws of ~~Delaware, with corporate power~~ the Cayman Islands and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. b. (b) As of the Closing Date, the ~~Securities~~ Shares will be duly authorized and, when issued and delivered to ~~the~~ Investor against full payment therefor in accordance with the terms of this Subscription Agreement, the ~~Securities~~ Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under ~~the Certificate~~ Issuer's certificate of ~~Incorporation~~ incorporation or ~~the Issuer’s bylaws (each as amended to the Closing Date)~~ memorandum and articles of association or under the ~~General Corporation Law~~ laws of the ~~State of Delaware~~Cayman Islands. c. (c) This Subscription Agreement has been duly authorized, executed and delivered by ~~the~~ Issuer and, assuming that this Subscription Agreement constitutes the valid and binding agreement of ~~the~~ Investor, this Subscription Agreement ~~constitutes a valid and binding agreement of the Issuer and~~ is enforceable against ~~the~~ Issuer 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, or (ii) principles of equity, whether considered at law or equity. d. (d) The issuance and sale by Issuer of the ~~Securities and the compliance by the Issuer with all of the provisions of~~ Shares pursuant to this Subscription Agreement ~~and the consummation of the transactions contemplated herein~~ will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of ~~the~~ Issuer or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which ~~the~~ Issuer or any of its subsidiaries is a party or by which ~~the~~ Issuer or any of its subsidiaries is bound or to which any of the property or assets of ~~the~~ Issuer is subject that would reasonably be expected to have a material adverse effect on the business, ~~properties,~~ financial ~~condition, stockholders’ equity~~ condition or results of operations of ~~the~~ Issuer and its subsidiaries, taken as a ~~whole~~whole (a "Material Adverse Effect"), or materially affect the validity of the ~~Securities~~ Shares or the legal authority of ~~the~~ Issuer to ~~enter into and perform~~ comply in all material respects with its obligations under this ~~Agreement (a “Material Adverse Effect”)~~Subscription Agreement; (ii) result in any violation of the provisions of the organizational documents of ~~the~~ Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over ~~the~~ Issuer or any of its properties that would reasonably be expected to have a Material Adverse ~~Effect~~Effect or materially affect the validity of the Shares or the legal authority of Issuer to comply in all material respects with its obligations under this Subscription Agreement. ~~e. Assuming~~ (e) As of their respective filing dates, all reports (the ~~accuracy~~ "SEC Reports") required to be filed by Issuer with the U.S. Securities and Exchange Commission (the "SEC") complied in all material respects with the applicable requirements of the ~~representations~~ Securities Exchange Act of 1934, as amended (the "Exchange Act"), and ~~warranties~~ the rules and regulations of the ~~Investor set forth herein~~SEC promulgated thereunder. As of the date hereof, there are no material outstanding or unresolved comments in comment letters received by Issuer from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports. (f) Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the ~~Securities~~ Shares pursuant to this Subscription Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, ~~and~~ (iii) ~~consents~~those required by The Nasdaq Stock Market LLC, ~~waivers, authorizations, orders, notices or filings,~~ and (iv) the failure of which to obtain ~~or make,~~ would not be reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. ~~f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning~~ (g) As of the ~~Investment Company Act of 1940~~date hereof, ~~as amended. g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. The~~ Issuer has not received any written communication from a governmental authority that alleges that ~~the~~ Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. h. (h) Assuming the accuracy of ~~the~~ Investor’s 's representations and warranties set forth in Section 6 of this Subscription Agreement, no registration under the Securities Act of 1933, as amended (the "Securities Act"), is required for the offer and sale of the ~~Securities~~ Shares by ~~the~~ Issuer to ~~the~~ Investor. i. (i) Neither ~~the~~ Issuer nor any person acting on its behalf has offered or sold the ~~Securities~~ Shares by any form of general solicitation or general advertising ~~and~~ in violation of the Securities ~~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~~Act. ~~j. The~~ (j) Issuer is not under any obligation to pay any broker’s 's fee or commission in connection with the sale of the ~~Securities to the Investor~~Shares. k. As of the date hereof, the total authorized capital stock of the Issuer is (i) 4,600,000,000 shares of Common Stock, of which 244,220,336 are issued and outstanding as of the date of this Agreement, and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this Agreement. All issued and outstanding shares of Common Stock and shares of Preferred Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Issuer any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred Stock. l. The Issuer represents and warrants as of the date hereof, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into by the Issuer (an “Other Agreement”) will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) by the Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of securities thereunder. If, and whenever on or after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide prior written notice thereof to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase Agreements. m. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.

Appears in 1 contract

Samples: Subscription Agreement (Nvni Group LTD)

Issuer Representations and Warranties. The Issuer represents and warrants to the ~~Investor, as of the Closing Date,~~ Investor that: a. The Issuer ~~has been~~ is an exempted company duly ~~incorporated as a Delaware corporation and is~~ incorporated, validly existing and in good standing under the laws of ~~Delaware, with~~ the Cayman Islands. The Issuer has all power (corporate ~~power~~ or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, ~~deliver~~ deliver, and perform its obligations under this Subscription Agreement. b. As of the Closing Date, subject to the ~~Securities~~ receipt of the Subscription Amount in accordance with the terms of this Subscription Agreement and registration on the Issuer’s register of members, the Shares will be duly authorized and, when issued and delivered to the Investor against full payment ~~therefor~~ in accordance with the terms of this ~~Agreement~~Subscription Agreement and registered on the Issuer’s register of members, the ~~Securities~~ Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the ~~Certificate of Incorporation or the~~ Issuer’s ~~bylaws~~ memorandum and articles of association (~~each~~ as may be amended and/or restated from time to time) in effect on the Closing ~~Date)~~ Date or under the ~~General Corporation Law of the State of Delaware~~Cayman Islands Companies Law. c. This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding agreement of the Investor, this Subscription Agreement ~~constitutes a valid and binding agreement of the Issuer and~~ is enforceable against the Issuer in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium~~ moratorium, or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity. d. The issuance and sale of the ~~Securities~~ Shares and the compliance by the Issuer with all of the provisions of this Subscription Agreement and the consummation of the contemplated transactions ~~contemplated herein~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer ~~or any of its subsidiaries pursuant to~~ under the terms of ~~(i)~~ any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer ~~or any of its subsidiaries~~ is a party or by which the Issuer ~~or any of its subsidiaries~~ is bound or to which any of the property or assets of the Issuer is subject that would reasonably be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of the Issuer and its subsidiaries, taken as a whole, or materially affect the validity of the Securities or the legal authority ability of the Issuer to ~~enter into and perform its obligations under~~ timely comply in all material respects with the terms of this Subscription Agreement (a an “Issuer Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of the Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect. e. Assuming the accuracy of the representations and warranties of the Investor set forth herein, the Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the Securities pursuant to this Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, and (iii) consents, waivers, authorizations, orders, notices or filings, the failure of which to obtain or make, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. The Issuer has not received any written communication from a governmental authority that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. h. Assuming the accuracy of the Investor’s representations and warranties set forth in Section ~~6 of this Agreement~~6, no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the ~~Securities~~ Shares by the Issuer to the Investor~~. i. Neither the Issuer nor any person acting on its behalf has~~ . The Shares (i) were not offered ~~or sold the Securities~~ by any form of general solicitation or general advertising and (ii) to the ~~Securities~~ Issuer’s knowledge are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. j. The Issuer is not under any obligation to pay any broker’s fee or commission in connection with the sale of the Securities to the Investor. k. As of the date hereof, the total authorized capital stock of the Issuer is (i) 4,600,000,000 shares of Common Stock, of which 244,220,336 are issued and outstanding as of the date of this Agreement, and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this Agreement. All issued and outstanding shares of Common Stock and shares of Preferred Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Issuer any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred Stock. l. The Issuer represents and warrants as of the date hereof, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into by the Issuer (an “Other Agreement”) will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) by the Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of securities thereunder. If, and whenever on or after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide prior written notice thereof to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase Agreements. m. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.

Appears in 1 contract

Samples: Letter Agreement (Blue Gold LTD)

Issuer Representations and Warranties. The Issuer represents and warrants to the ~~Investor, as of the Closing Date,~~ Subscriber that: a. (a) The Issuer has been duly ~~incorporated as a Delaware corporation and~~ incorporated, is validly existing and is in good standing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its properties and conduct its business as presently ~~conducted and to enter into, deliver and perform its obligations under this Agreement~~conducted. b. As of the Closing Date, the Securities will be duly authorized and, when issued and delivered to the Investor against full payment therefor in accordance with the terms of this Agreement, the Securities will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Certificate of Incorporation or the Issuer’s bylaws (~~each as amended to the Closing Date~~b) ~~or under the General Corporation Law of the State of Delaware. c.~~ This Subscription Agreement has been duly authorized, executed and delivered by the Issuer ~~and, assuming that this Agreement constitutes the valid and binding agreement of the Investor, this Agreement constitutes a valid and binding agreement of the Issuer~~ and is enforceable ~~against the Issuer~~ 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, or and (ii) principles of equity, whether considered at law or equity. d. (c) The ~~issuance~~ execution, delivery and ~~sale~~ performance of ~~the Securities and the compliance~~ this Subscription Agreement by the Issuer ~~with all of the provisions of this Agreement~~ and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any of the property or assets of the Issuer is ~~subject that~~ subject, which would ~~reasonably be expected to~~ have a material adverse effect on the business, properties, financial condition, stockholders’ ' equity or results of operations of the Issuer ~~and its subsidiaries, taken as a whole,~~ (an "Issuer Material Adverse Effect") or materially affect the validity of the ~~Securities~~ Shares or the legal authority of the Issuer to ~~enter into and perform its obligations under~~ comply in all material respects with the terms of this ~~Agreement (a “Material Adverse Effect”)~~Subscription Agreement; (ii) result in any violation of the provisions of the organizational documents of the Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties that would ~~reasonably be expected to~~ have a an Issuer Material Adverse ~~Effect~~Effect or the legal authority of the Issuer to comply with this Subscription Agreement. ~~e. Assuming the accuracy of the representations and warranties of the Investor set forth herein,~~ (d) There are no securities or instruments issued by or to which the Issuer is ~~not required~~ a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Shares or (ii) the securities to ~~obtain~~ be issued pursuant to any ~~consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or~~ other ~~federal, state, local or other governmental authority, self-regulatory organization or other person~~ subscription agreement with investors that have agreed to purchase securities in connection with the ~~issuance of~~ Transaction, that have not been or will be waived on or prior to the Securities pursuant to this Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, and (iii) consents, waivers, authorizations, orders, notices or filings, the failure of which to obtain or make, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse EffectClosing Date. f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. (e) The Issuer has not ~~received~~ entered into any ~~written communication from a governmental authority that alleges that the Issuer is not in compliance with~~ agreement or ~~is in default~~ arrangement entitling any agent, broker, investment banker, financial advisor or ~~violation of~~ other person to any ~~applicable law, except where such non-compliance, default~~ broker's or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. h. Assuming the accuracy of the Investor’s representations and warranties set forth in Section 6 of this Agreement, no registration under the Securities Act is required for the offer and sale of the Securities by the Issuer to the Investor. i. Neither the Issuer nor any person acting on its behalf has offered or sold the Securities by any form of general solicitation or general advertising and the Securities are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act finder's fee or any ~~state securities laws. j. The Issuer is not under any obligation to pay any broker’s~~ other commission or similar fee ~~or commission~~ in connection with the ~~sale of~~ transactions contemplated by this Subscription Agreement for which the ~~Securities to the Investor~~Subscriber could become liable. ~~k. As of~~ (f) The Issuer understands that the ~~date hereof, the total authorized capital stock of the Issuer is (i) 4,600,000,000 shares of Common Stock, of which 244,220,336 are issued~~ foregoing representations and ~~outstanding as of the date of this Agreement,~~ warranties shall be deemed material and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this Agreement. All issued and outstanding shares of Common Stock and shares of Preferred Stock to have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted relied upon by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Issuer any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred StockSubscriber. l. The Issuer represents and warrants as of the date hereof, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into by the Issuer (an “Other Agreement”) will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) by the Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of securities thereunder. If, and whenever on or after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide prior written notice thereof to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase Agreements. m. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.

Appears in 1 contract

Samples: Subscription Agreement (Federal Street Acquisition Corp.)

Issuer Representations and Warranties. ~~The~~ Issuer represents and warrants to the ~~Investor, as of the Closing Date,~~ Investor that: ~~a. The~~ (a) Issuer ~~has been~~ is a corporation duly ~~incorporated as a Delaware corporation and is~~ incorporated, validly existing and in good standing under the laws of the State of Delaware~~, with~~ . Issuer has all power (corporate ~~power~~ or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this ~~Agreement~~Subscription Agreement and the Warrant. b. (b) As of the ~~Closing Date~~date hereof, the Securities ~~will be~~ have been duly authorized and, when issued and delivered to the Investor against full payment therefor in accordance with the terms of this ~~Agreement~~Subscription Agreement and the Warrant, as applicable, the Securities will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under ~~the Certificate of Incorporation or the~~ Issuer’s ~~bylaws~~ certificate of incorporation (~~each~~ as ~~amended to the Closing Date) or under the General Corporation Law~~ in effect at such time of ~~the State of Delaware~~issuance). c. (c) This Subscription Agreement ~~has~~ and the Warrant have been duly authorized, executed and delivered by ~~the~~ Issuer and, assuming that this Subscription Agreement ~~constitutes~~ and the Warrant constitute the valid and binding agreement of the Investor, each of this Subscription Agreement ~~constitutes a valid~~ and ~~binding agreement of~~ the ~~Issuer and is~~ Warrant are enforceable against ~~the~~ Issuer 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, or (ii) principles of equity, whether considered at law or equity. d. (d) The issuance and sale by Issuer of the Securities pursuant to this Subscription Agreement and the Warrant, as applicable, and the compliance by ~~the~~ Issuer with all of the provisions of this Subscription Agreement and the ~~consummation of the transactions contemplated herein~~ Warrant will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of ~~the~~ Issuer or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which ~~the~~ Issuer or any of its subsidiaries is a party or by which ~~the~~ Issuer or any of its subsidiaries is bound or to which any of the property or assets of ~~the~~ Issuer is subject that would reasonably be expected to have a material adverse effect on the business, ~~properties,~~ financial ~~condition, stockholders’ equity~~ condition or results of operations of ~~the~~ Issuer and its subsidiaries, taken as a ~~whole~~whole (a “Material Adverse Effect”), or materially affect the validity of the Securities or the legal authority of ~~the~~ Issuer to ~~enter into and perform~~ comply in all material respects with its obligations under this Subscription Agreement ~~(a “Material Adverse Effect”)~~or the Warrant; (ii) result in any violation of the provisions of the organizational documents of ~~the~~ Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over ~~the~~ Issuer or any of its properties that would reasonably be expected to have a Material Adverse ~~Effect~~Effect or materially affect the validity of the Securities or the legal authority of Issuer to comply in all material respects with its obligations under this Subscription Agreement and the Warrant. ~~e. Assuming~~ (e) As of their respective filing dates, all reports required to be filed by Issuer with the ~~accuracy~~ Securities and Exchange Commission (the “SEC”) since October 19, 2023 complied in all material respects with the applicable requirements of the ~~representations~~ Securities Act of 1933, as amended (the “Securities Act”), and ~~warranties~~ the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the ~~Investor set forth herein, the~~ SEC promulgated thereunder. (f) Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the performance by Issuer of the obligations, including the issuance of the ~~Securities~~ Securities, pursuant to this ~~Agreement~~Subscription Agreement or the Warrant, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, ~~and~~ (iii) ~~consents~~the filings required in accordance with Section 6, ~~waivers~~(iv) those required by the Nasdaq Capital Market LLC, ~~authorizations~~including with respect to obtaining approval of Issuer’s stockholders, ~~orders, notices or filings,~~ and (v) the failure of which to obtain ~~or make,~~ would not be reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. The Issuer has not received any written communication from a governmental authority that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. h. (g) Assuming the accuracy of the Investor’s representations and warranties set forth in Section ~~6 of this Agreement~~5, no registration under the Securities ~~Act~~ Act, is required for the offer and sale of the Securities by ~~the~~ Issuer to the Investor. i. (h) Neither ~~the~~ Issuer nor any person acting on its behalf has offered or sold the Securities by any form of general solicitation or general advertising ~~and~~ in violation of the Securities ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of~~Act. (i) As of the date hereof, the ~~Securities Act or any state securities laws~~issued and outstanding shares of Common Stock of the Issuer are registered pursuant to Section 12(b) of the Exchange Act. ~~j. The~~ (j) Issuer is not under any obligation to pay any broker’s fee or commission in connection with the sale of the ~~Securities to the Investor~~Securities. k. As of the date hereof, the total authorized capital stock of the Issuer is (i) 4,600,000,000 shares of Common Stock, of which 244,220,336 are issued and outstanding as of the date of this Agreement, and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this Agreement. All issued and outstanding shares of Common Stock and shares of Preferred Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Issuer any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred Stock. l. The Issuer represents and warrants as of the date hereof, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into by the Issuer (an “Other Agreement”) will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) by the Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of securities thereunder. If, and whenever on or after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide prior written notice thereof to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase Agreements. m. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.

Appears in 1 contract

Samples: Subscription Agreement (Spectaire Holdings Inc.)

Issuer Representations and Warranties. The Issuer represents and warrants to the ~~Investor, as of the Closing Date,~~ Investor that: a. The Issuer ~~has been~~ is an exempted company duly ~~incorporated as a Delaware corporation and is~~ incorporated, validly existing and in good standing under the laws of ~~Delaware, with~~ the Cayman Islands. The Issuer has all power (corporate ~~power~~ or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. b. As of the Closing Date, subject to the ~~Securities~~ receipt of the Cash Subscription Amount in accordance with the terms of this Subscription Agreement and registration on the Issuer’s register of members, the Shares will be duly authorized and, when issued and delivered to the Investor against full payment therefor in accordance with the terms of this ~~Agreement~~Subscription Agreement and registered on the Issuer’s register of members, the ~~Securities~~ Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the ~~Certificate of Incorporation or the~~ Issuer’s ~~bylaws~~ memorandum and articles of association (~~each~~ as may be amended and/or restated from time to time) (the “Issuer’s Charter”) in effect on the Closing ~~Date)~~ Date or under the ~~General Corporation Law~~ Companies Act (as revised) of the ~~State of Delaware~~Cayman Islands. c. This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding agreement of SPAC and the Investor, this Subscription Agreement ~~constitutes a valid and binding agreement of the Issuer and~~ is enforceable against the Issuer 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, or (ii) principles of equity, whether considered at law or equity. d. The issuance and sale of the ~~Securities~~ Shares and the compliance by the Issuer with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer ~~or any of its subsidiaries~~ pursuant to the terms of ~~(i)~~ any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer ~~or any of its subsidiaries~~ is a party or by which the Issuer ~~or any of its subsidiaries~~ is bound or to which any of the property or assets of the Issuer is subject that would reasonably be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of the Issuer and its subsidiaries, taken as a whole, or materially affect the validity of the Securities or the legal authority ability of the Issuer to ~~enter into and perform its obligations under~~ timely comply in all material respects with the terms of this Subscription Agreement (a an “Issuer Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of the Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect. e. Assuming the accuracy of the representations and warranties of the Investor set forth herein, the Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the Securities pursuant to this Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, and (iii) consents, waivers, authorizations, orders, notices or filings, the failure of which to obtain or make, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. The Issuer has not received any written communication from a governmental authority that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. h. Assuming the accuracy of the Investor’s representations and warranties set forth in Section ~~6 of this Agreement~~6, no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the ~~Securities~~ Shares by the Issuer to the ~~Investor. i. Neither the Issuer nor any person acting on its behalf has~~ Investor hereunder. The Shares (i) were not offered ~~or sold the Securities~~ by any form of general solicitation or general advertising and (ii) to the ~~Securities~~ Issuer’s knowledge are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~j. The~~ f. As of their respective filing dates, each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by Issuer ~~is not under any obligation to pay any broker’s fee or commission in connection~~ with the ~~sale~~ SEC prior to the date of this Subscription Agreement (the “Issuer SEC Documents”) complied in all material respects with the requirements of the ~~Securities~~ Exchange Act applicable to the ~~Investor~~SEC Documents and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents. None of the Issuer SEC Documents filed under the Exchange Act, contained, when filed or, if amended prior to the date of this Subscription Agreement, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. A copy of each Issuer SEC Document is available via the SEC’s XXXXX system. There are no material outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the Issuer SEC Documents. k. g. As of the date ~~hereof~~of this Subscription Agreement, the ~~total~~ authorized share capital ~~stock~~ of issuer consists of 5,000,000,000 ordinary shares of issuer, par value $0.00001 per share. All outstanding ordinary shares of issuer are duly authorized, validly issued, fully paid and non-assessable, are not subject to preemptive rights and are held free and clear of all liens, other than transfer restrictions under applicable securities laws and the Issuer’s Charter. Except as set forth above and pursuant to the other subscription agreements, the Transaction Agreement and the other agreements and arrangements referred to therein or in the Issuer ~~is (i) 4,600,000,000 shares of Common Stock~~SEC Documents, ~~of which 244,220,336 are issued and outstanding~~ as of the date of this Subscription Agreement, and (ii) 3,340,121,789 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as of the date of this Agreement. All issued and outstanding shares of Common Stock and shares of Preferred Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Issuer’s organizational documents, there are no outstanding contractual obligations of the Issuer to repurchase, redeem or otherwise acquire any shares of Common Stock or Preferred Stock or any other capital stock of the Issuer. The Issuer has reserved 155,862,631 shares of Common Stock for issuance to officers, directors, employees and consultants of the Issuer pursuant to its 2015 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there are no outstanding options, ~~warrants~~warrants or other rights to subscribe for, ~~rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to~~ purchase or acquire from the Issuer any ordinary shares of ~~Common Stock~~ Issuer or ~~Preferred Stock~~other equity interests in Issuer, or ~~any~~ securities convertible into or exchangeable or exercisable for ~~shares of Common Stock or Preferred Stock. l. The Issuer represents and warrants as~~ such equity interests. As of the date ~~hereof~~of this Subscription Agreement, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into there are no securities issued by the Issuer ~~(an “Other Agreement”)~~ or instruments to which the Issuer is a party containing anti-dilution or similar provisions that will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) be triggered by the ~~Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to~~ transactions contemplated by the ~~regulatory requirements of such investor~~ Transaction Agreement or ~~its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and~~ the issuance of ~~securities thereunder. If, and whenever~~ the Shares pursuant to this Subscription Agreement or the Class A Ordinary Shares of the Issuer issued pursuant to the other subscription agreements that have not been or will not be validly waived on or ~~after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide~~ prior ~~written notice thereof~~ to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit closing of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase AgreementsTransaction. m. h. Except for such matters as have not had and would not be reasonably likely to ~~have, individually or in the aggregate,~~ have a Material Adverse Effect~~, as of the date hereof~~, there is no (i) action, suit, ~~action~~claim or other proceeding, ~~proceeding~~ in each case by or ~~arbitration~~ before ~~a governmental authority or arbitrator~~ any Governmental Authority pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.

Appears in 1 contract

Samples: Subscription Agreement (Cheche Group Inc.)

Issuer Representations and Warranties. The Issuer represents and warrants ~~to the Investor, as of the Closing Date,~~ that: a. The Issuer has been duly incorporated ~~as a Delaware corporation~~ and is validly existing ~~and~~ as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. b. ~~As of the Closing Date, the Securities will be~~ The Acquired Shares have been duly authorized and, when issued and delivered to ~~the Investor~~ Subscriber against full payment ~~therefor~~ for the Acquired Shares in accordance with the terms of this ~~Agreement~~Subscription Agreement and registered with the Transfer Agent, the ~~Securities~~ Acquired Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the ~~Certificate of Incorporation or the~~ Issuer’s certificate of incorporation and bylaws ~~(each as amended to the Closing Date)~~ or under the ~~General Corporation Law~~ laws of the State of Delaware. c. This Subscription Agreement has been duly authorized, executed and delivered by the Issuer ~~and, assuming that this Agreement constitutes the valid and binding agreement of the Investor, this Agreement constitutes a valid and binding agreement of the Issuer~~ and is enforceable against ~~the Issuer~~ it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, ~~reorganization~~arrangement, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. d. The execution, delivery and performance of this Subscription Agreement, including the issuance and sale of the ~~Securities and the compliance by the Issuer with all of the provisions of this Agreement~~ Acquired Shares and the consummation of the other transactions contemplated ~~herein~~ hereby, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer ~~or any of its subsidiaries~~ pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer ~~or any of its subsidiaries~~ is a party or by which the Issuer ~~or any of its subsidiaries~~ is bound or to which any of the property or assets of the Issuer is subject that would reasonably be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of the Issuer and its subsidiaries, taken as a whole, or materially affect the validity of the Securities or the legal authority of the Issuer to enter into and perform its obligations under this Agreement (a “Material Adverse Effect”)subject; (ii) ~~result in any violation of the provisions of~~ the organizational documents of the Issuer; or (iii) ~~result in any violation of~~ any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties ~~that~~ that, in the case of clauses (i) and (iii), would reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations, condition (including financial condition), stockholders’ equity or results of operations of the Issuer or materially and adversely affect the validity of the Acquired Shares or the legal authority or ability of the Issuer to perform in any material respects its obligations hereunder (a “Material Adverse Effect”). e. Other than the Issuer’s Class B common stock, par value $0.0001 per share (the “Class B Shares”), pursuant to the terms of the Issuer’s certificate of incorporation, there are no securities or instruments issued by or to which the Issuer is a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Acquired Shares or (ii) the shares to be issued pursuant to any Other Subscription Agreement that have not been or will not be validly waived on or prior to the Closing Date. f. The Issuer is not in default or violation (and no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation) of any term, condition or provision of (i) the organizational documents of the Issuer, (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, permit, franchise or license to which, as of the date of this Subscription Agreement, the Issuer is a party or by which the Issuer’s properties or assets are bound or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties, except, in the case of clauses (ii) and (iii), for defaults or violations that have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. ~~e. Assuming the accuracy of the representations and warranties of the Investor set forth herein, the~~ g. The Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by the Issuer of this Subscription Agreement (including, without limitation, the issuance of the ~~Securities pursuant to this Agreement~~Acquired Shares), other than (i) ~~filings~~ the filing with the ~~SEC~~Securities and Exchange Commission (the “Commission”) of the Registration Statement (as defined below), (ii) filings required by applicable state securities laws, ~~and~~ (iii) ~~consents~~the filing of a Notice of Exempt Offering of Securities on Form D with the Commission under Regulation D of the Securities Act, ~~waivers~~(iv) the filings required in accordance with Section 10(o) of this Subscription Agreement; (v) those required by the NASDAQ Capital Market (“NASDAQ”), ~~authorizations~~including with respect to obtaining approval of the Issuer’s stockholders, ~~orders, notices or filings,~~ and (vi) the failure of which to obtain ~~or make,~~ would not be reasonably ~~be expected~~ likely to have, individually or in the aggregate, a Material Adverse Effect. ~~f. The Issuer is not, and immediately after receipt of payment for the Securities, will not be, an “investment company” within the meaning~~ h. As of the ~~Investment Company Act~~ date of ~~1940~~this Subscription Agreement, ~~as amended~~the authorized capital stock of the Issuer consists of (i) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”) and (ii) 145,000,000 shares of common stock, par value $0.0001 per share (the “Common Stock”), including (1) 125,000,000 Class A Shares and (2) 20,000,000 Class B Shares. As of the date of this Subscription Agreement, (i) no shares of Preferred Stock are issued and outstanding, (ii) 27,500,000 Class A Shares are issued and outstanding, (iii) 6,875,000 Class B Shares are issued and outstanding and (iv) 13,750,000 redeemable warrants and 7,500,000 private placement warrants are outstanding. ~~g. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect.~~ i. The Issuer has not received any written communication from a governmental ~~authority~~ entity that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would ~~not reasonably be expected to have~~not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect. h. j. The issued and outstanding Class A Shares are registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and are listed for trading on NASDAQ under the symbol “OSPR”. There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by NASDAQ or the Commission with respect to any intention by such entity to deregister the Class A Shares or prohibit or terminate the listing of the Class A Shares on NASDAQ. The Issuer has taken no action that is designed to terminate the registration of the Class A Shares under the Exchange Act. k. Assuming the accuracy of ~~the Investor~~Subscriber’s representations and warranties set forth in Section 6 4 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the ~~Securities~~ Acquired Shares by the Issuer to ~~the Investor~~Subscriber. i. l. Neither the Issuer nor any person acting on its behalf has ~~offered~~ engaged or ~~sold the Securities by~~ will engage in any form of general solicitation or general advertising ~~and~~ (within the meaning of Regulation D of the Securities 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. j. The Issuer is not under any obligation to pay any broker’s fee or commission Act) in connection with ~~the~~ any offer or sale of the ~~Securities~~ Acquired Shares. m. The Issuer has not entered into any other agreement with any subscriber to the ~~Investor~~Other Subscription Agreements or any other investor to purchase Class A Shares on terms (economic or otherwise) more favorable to such subscriber or investor than as set forth in this Subscription Agreement. k. n. The Issuer has made available to Subscriber (including via the Commission’s XXXXX system) a copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other document, if any, filed by the Issuer with the Commission since its initial registration of the Class A Shares (the “SEC Documents”). As of ~~the date hereof~~their respective filing dates, the ~~total authorized capital stock~~ SEC Documents complied in all material respects with the requirements of the Exchange Act applicable to the Issuer ~~is (i) 4,600,000,000 shares~~ and the rules and regulations of ~~Common Stock~~the Commission promulgated thereunder applicable to the SEC Documents. None of the SEC Documents filed under the Exchange Act contained, ~~of which 244,220,336 are issued and outstanding~~ when filed or, if amended, as of the date of ~~this Agreement~~such amendment with respect to those disclosures that are amended, ~~and (ii) 3,340,121,789 shares~~ any untrue statement of ~~Preferred Stock~~a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, ~~$0.0001 par value per share (the “Preferred Stock”), of which 2,180,734,856 are issued and outstanding as~~ in light of the ~~date of this Agreement. All issued and outstanding shares of Common Stock and shares of Preferred Stock have been duly authorized and validly issued~~circumstances under which they were made, ~~are fully paid and are non-assessable and are~~ not ~~subject to preemptive rights. Except as set forth in the Issuer’s organizational documents~~misleading; provided, ~~there are no outstanding contractual obligations of~~ that the Issuer makes no such representation or warranty with respect to ~~repurchase, redeem or otherwise acquire~~ any ~~shares of Common Stock or Preferred Stock~~ information relating to Royal or any ~~other capital stock~~ of ~~the Issuer~~its affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has ~~reserved 155,862,631 shares of Common Stock for issuance to officers~~timely filed each report, ~~directors~~statement, ~~employees~~ schedule, prospectus, and ~~consultants of~~ registration statement that the Issuer ~~pursuant~~ was required to file with the Commission since its ~~2015 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Issuer stockholders (the “Stock Plan”)~~inception. Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 152,138,783 shares of Common Stock have been granted and are currently outstanding, and 3,723,848 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Issuer has reserved 46,392,432 shares of Common Stock for issuance upon exercise of warrants and 535,749,799 shares of Common Stock for issuance in connection with Simple Agreements for Future Equity. Except for the securities set forth in this clause (k), there There are no material outstanding ~~options, warrants, rights (including conversion~~ or ~~preemptive rights and rights of first refusal or similar rights) or agreements, orally or~~ unresolved comments in ~~writing, to purchase or acquire~~ comment letters from the Issuer any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred Stock. l. The Issuer represents and warrants as of the date hereof, and covenants and agrees from and after the date hereof until the earlier of (x) the closing the Business Combination (as defined below) or (y) the first anniversary of the date hereof, that the terms of any other subscription agreement or other similar agreement entered into by the Issuer (an “Other Agreement”) will not include terms and conditions that are materially more favorable (“More Favorable Terms”) to any investor party thereto which has subscribed for the same or fewer shares of Common Stock as the number of Subscribed Shares subscribed for (in the aggregate) by the Investor and any of its Affiliates (a “Covered Investor”), other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of securities thereunder. If, and whenever on or after the date hereof, the Issuer desires to enter into an Other Agreement with a Covered Investor that contains More Favorable Terms, then (i) the Issuer shall provide prior written notice thereof to the Investor and (ii) upon execution by the Issuer and such Covered Investor of such Other Agreement, the terms and conditions of this Agreement shall be, without any further action by the Investor or the Issuer, automatically amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the More Favorable Terms; provided that, upon written notice to the Issuer at any time, the Investor may elect not to accept the benefit of any one or more More Favorable Terms, in which event the term or condition contained in this Agreement shall apply to the Investor as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred Commission Staff with respect to any of the ~~Investor. The provisions of this Subsection 5(l) shall not apply to terms or conditions related to differences in timing of closing of Other Securities Purchase Agreements~~SEC Documents. m. o. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, ~~as of the date hereof,~~ there is no (i) action, suit, ~~action~~claim or other proceeding, ~~proceeding~~ in each case by or ~~arbitration~~ before a any governmental authority ~~or arbitrator~~ pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity ~~or arbitrator~~ outstanding against the Issuer. p. Except for placement fees payable to the Agent (as defined herein), the Issuer has not paid, and is not obligated to pay, any brokerage, finder’s or other fee or commission in connection with its issuance and sale of the Acquired Shares, including, for the avoidance of doubt, any fee or commission payable to any stockholder or affiliate of the Issuer. q. Except as provided in this Subscription Agreement and the Other Subscription Agreements, none of the Issuer, its subsidiaries or any of their affiliates, nor any person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of the issuance of any of the Acquired Shares under the Securities Act, whether through integration with prior offerings or otherwise. r. The Issuer and its board of directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, interested shareholder, business combination, poison pill (including, without limitation, any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation, Bylaws or other organizational documents or the laws of the jurisdiction of its formation which is or could become applicable to Subscriber as a result of the Issuer’s issuance of the Acquired Shares and Subscriber’s ownership of the Acquired Shares. The Issuer and its board of directors have taken all necessary action, if any, in order to render inapplicable any shareholder rights plan or similar arrangement relating to accumulations of beneficial ownership of shares of Common Stock or a change in control of the Issuer or any of its subsidiaries. s. Neither the Issuer nor any of its subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Issuer or any subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Issuer and its subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing, will not be Insolvent (as defined below). For purposes hereof, “Insolvent” means, with respect to any person, (i) the present fair saleable value of such person’s assets is less than the amount required to pay such person’s total indebtedness, (ii) such person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) such person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) such person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Appears in 1 contract

Samples: Subscription Agreement (Osprey Energy Acquisition Corp)

Common use of Issuer Representations and Warranties Clause in Contracts