Issuer’s Representations, Warranties and Agreements. The Issuer hereby represents and warrants to the Investor as follows: (a) The Issuer is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all power (corporate 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) At the Closing, subject to the 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, validly issued and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) or the laws of the 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 obligation of the Investor, is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity. (d) The issuance and sale of 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 pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under this Subscription 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 Investor’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery of the Shares in the manner contemplated by 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 Shares by the Issuer to the Investor. (f) Neither the Issuer nor anyone acting on its behalf has offered the Shares or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
Appears in 4 contracts
Samples: Subscription Agreement (Lotus Technology Inc.), Subscription Agreement (Lotus Technology Inc.), Subscription Agreement (Lotus Technology Inc.)
Issuer’s Representations, Warranties and Agreements. The For purposes of this Section 2.2, the term “Issuer” shall refer to the Issuer as of the date hereof and, for purposes of only the representations contained in Sections 2.2.5, 2.2.9, 2.2.15, 2.2.17 and 2.2.18 and to the extent such representations and warranties are made as of the Closing, the combined company after giving effect to the Transactions. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a corporation in good standing under the laws of the Cayman Islands. The Issuer has all Delaware General Corporation Law (“DGCL”), with corporate power (corporate or otherwise) and authority to own, lease 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) At 2.2.2 The Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Closing, subject to the receipt Shares will be free and clear of the Subscription Amount any liens or other restrictions whatsoever in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorizedvalidly issued, validly issued and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable, and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time amended and restated certificate of issuance) incorporation or under the laws of the Cayman IslandsDGCL or otherwise.
(c) 2.2.3 This Subscription Agreement has been duly authorized, authorized and validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes has been duly authorized, executed and delivered by Subscriber, is the valid and binding obligation of the Investor, Issuer and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equityequity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts).
2.2.4 The execution, delivery, and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), issuance and sale of this Subscription Agreement the Shares, and the consummation of the Transactions and certain other transactions contemplated herein, 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 charge, or encumbrance upon any of the property or assets of the Issuer or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license 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 or any of its subsidiaries is subject, which would reasonably be expected to have a Material Adverse Effect (as defined in the Merger Agreement) or a material adverse effect on the ability assets, business, results of operation or financial operations of the Issuer and its subsidiaries, taken as a whole (including the combined company after giving effect to the Transaction), or prevents, materially impairs, materially delays or materially impedes the legal authority of the Issuer to enter into and timely perform its obligations under this Subscription Agreement or the Merger Agreement or to consummate the Transactions or the validity or enforceability of the Shares (a collectively, an “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries, or (iii) result in any violation of any law, statute or any judgment, order, rule rule, regulation or regulation other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its subsidiaries or any of its and their respective properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
(e) Assuming the accuracy of the Investor’s representations and warranties set forth in Section 4.22.2.5 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 or self-regulatory organization in connection with the offerexecution, sale delivery and delivery performance of this Subscription Agreement or the Transactions (including, without limitation, the issuance of the Shares in the manner contemplated by this Subscription AgreementShares), no registration under other than (i) filings with the Securities Act of 1933, as amended and Exchange Commission (the “Securities ActCommission”), (ii) is filings required for by applicable state securities laws, (iii) any filings required under the offer Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 or similar antitrust laws, (iv) filings required by Nasdaq Stock Market LLC (“Nasdaq”), including with respect to obtaining Issuer stockholder approval, (v) consents, waivers, authorizations or filings that have been obtained or made on or prior to the Subscription, and (vi) where the failure of which to obtain would not reasonably be expected to have an Issuer Material Adverse Effect or have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated hereby, including the issuance and sale of the Shares by the Issuer to the InvestorShares.
(f) Neither the Issuer nor anyone acting on its behalf has offered the Shares or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
Appears in 4 contracts
Samples: Merger Agreement (Good Works Acquisition Corp.), Subscription Agreement (Good Works Acquisition Corp.), Subscription Agreement (Isleworth Healthcare Acquisition Corp.)
Issuer’s Representations, Warranties and Agreements. The Issuer hereby represents and warrants to the Investor Purchasers and agrees with the Purchasers, as follows:of the date hereof and as of the Closing, as follows (it being understood this Section 2.3 shall only come into effect if there is a Minimum Cash Adjustment and the Primary Shares are in fact purchased pursuant to this Agreement):
(a) 2.3.1 The Issuer is an exempted company a corporation duly incorporated, organized and validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all State of Israel, with corporate power (corporate 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 Share Purchase Agreement.
(b) At the Closing2.3.2 The Primary Shares have been duly authorized and, subject when issued and delivered to the receipt of the Subscription Amount each Purchaser against full payment for each Purchaser’s Primary Shares in accordance with the terms of this Subscription Share Purchase Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Primary Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of of, or subject to any preemptive or similar rights created under under, the Issuer’s organizational documents (as in effect at such time amended and restated articles of issuance) association or similar constitutive agreements or the laws Laws of the Cayman IslandsState of Israel.
(c) 2.3.3 This Subscription Share Purchase Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Share Purchase Agreement constitutes the a valid and binding obligation of the Investorother parties hereto, is enforceable against it 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 generally, and (ii) principles of equity, whether considered at law or equity.
2.3.4 The execution, delivery and performance of this Share Purchase Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Primary Shares and the consummation of the transactions contemplated herein, herein do not and will not (i) conflict with with, or result in a breach or violation of 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 upon, any of the property or assets of the Issuer or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries, as applicable, is a party or by which the Issuer or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of the Issuer or any of its subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to have a material adverse effect on the ability legal authority of the Issuer to enter into and timely perform its obligations under this Subscription Share Purchase Agreement (a “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries, as applicable, 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 subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.3.5 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 Shares, (ii) any Ordinary Shares to be issued pursuant to the Employee Share Purchase Agreement or (iii) any shares of capital stock of the Issuer to be issued pursuant to the other Transactions, in each case, that have not been or will not be validly waived or terminated prior to the Closing Date.
2.3.6 As of the date of this Share Purchase Agreement, the authorized capital shares of the Issuer consists of (i) 65,366,595 Ordinary Shares of no par value (“Existing Ordinary Shares”) and (ii) 45,688,037 preferred shares of no par value (“Preferred Shares”). As of the date of this Share Purchase Agreement: (i) 14,389,390 Existing Ordinary Shares are issued and outstanding and (ii) 44,978,000 Preferred Shares are issued and outstanding (consisting of (a) 3,687,739 series A convertible preferred shares of the Issuer, no par value, (b) 5,404,159 series B convertible preferred shares of the Issuer, no par value, (c) 5,823,126 series B-1 convertible preferred shares of the Issuer, no par value, (d) 3,879,640 series B-2 convertible preferred shares of the Issuer, no par value, (e) Assuming the accuracy 6,464,881 series C convertible preferred shares of the Investor’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery of the Shares in the manner contemplated by this Subscription AgreementIssuer, no registration under the Securities Act of 1933par value, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to the Investor.
(f) Neither the Issuer nor anyone acting on its behalf has offered the Shares or any similar securities for sale to, or solicited any offer to buy any 6,289,727 series D convertible preferred shares of the same fromIssuer, or otherwise approached or negotiated no par value, and (g) 13,428,728 series E convertible preferred shares of the Issuer, no par value). Immediately prior to the Closing, the Preferred Shares in respect thereof with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3ii) or (7) under the Securities Actwill be converted to Ordinary Shares.
Appears in 3 contracts
Samples: Share Purchase Agreement (Taboola.com Ltd.), Share Purchase Agreement (Taboola.com Ltd.), Share Purchase Agreement (ION Acquisition Corp 1 Ltd.)
Issuer’s Representations, Warranties and Agreements. The Issuer hereby represents and warrants to the Investor as follows:
(a) The Issuer is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all power (corporate or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and contemplated to be conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
(b) At the Closing, subject the Shares will have been duly authorized, and when issued and delivered to the receipt of Investor against full payment in cash for the Subscription Amount Shares in accordance with the terms of this Subscription Agreement and registration on registered in the Issuer’s register of members, the Shares will be duly authorized, validly issued and allotted and fully paidpaid and non-assessable, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) or the laws of the 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 obligation of the Investor, is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
(d) The issuance and sale of 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 pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under 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 Investor’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery of the Shares in the manner contemplated by 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 Shares by the Issuer to the Investor. The Shares (i) were not offered to the Investor by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
(f) Neither The Issuer will use the Issuer nor anyone acting on its behalf has offered cash proceeds of the sale of the Shares contemplated by the Equity Subscription Agreements and this Agreement exclusively to operate the Issuer’s business post-Closing and will not, directly or indirectly, or in any way, use the proceeds, or lend, contribute or otherwise make available such proceeds to any affiliates, subsidiaries, or its parent or other person or entity, for the purpose of financing the activities of any person, entity or country currently subject to sanctions imposed by any of the laws of a relevant and applicable jurisdiction, including the jurisdiction(s) in which the Agreement will take place, the United States (including sanctions programs administered by the US Department of the Treasury’s Office of Foreign Assets Control), United Kingdom and the European Union.
(g) The Issuer is not (i) a person or entity named on the Specially Designated Nationals and Blocked Persons List administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC, or a person or entity prohibited by any OFAC Sanctions program, or any similar securities for sale tolist of sanctioned persons administered by the European Union or the United Kingdom (collectively, “Sanctions Lists”); (ii) directly or indirectly, owned or controlled by, or solicited acting on behalf of, one or more persons that are named on the Sanctions Lists; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national or the government, including any offer political subdivision, agency or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine or any other country or territory embargoed or subject to buy substantial trade restrictions by the United States, the European Union or the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (each, a “Prohibited Investor”). The Issuer agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided that the Issuer is permitted to do so under applicable law. To the extent required, the Issuer maintains procedures that it reasonably believes to be in compliance with sanctions programs administered by the United States, the European Union and the United Kingdom. To the extent required and from and after the closing of the Transaction, the Issuer shall maintain procedures adequate and necessary to ensure its compliance with sanctions programs administered by the United States, the European Union and the United Kingdom, and the Issuer shall comply with such sanctions programs to which it is legally subject and with which it is legally obligated to comply.
(h) No broker, finder or other financial consultant is acting on behalf of the Issuer in connection with this Agreement or the transactions contemplated hereby in such a way as to create any liability of the Investor for the payment of any fees, costs, expenses or commissions.
(i) (i) The Equity Subscription Agreements reflect or will reflect the same Per Share Purchase Price and other material terms and conditions (including the registration rights) with respect to the purchase of the Shares that are no more favorable to any Other Equity Investor thereunder in any material respect than the terms of this Agreement, other than terms particular to the issuance of any Other Equity Investor’s shares to the Issuer (if such Other Equity Investor elects to issue and sell its shares to the Issuer), SPAC as a signing party thereto, the regulatory requirements of the Other Equity Investors or their respective affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of the related Shares (collectively, the “Excluded Terms”), and (ii) any Permitted Financing Agreement to the extent it provides for the issuance of Equity Securities of the Issuer, other than (A) the convertible note purchase agreement dated May 9, 2022 by and between the Issuer and Lotus Technology Inc. and the convertible note dated May 13, 2022 issued by the Issuer to Lotus Technology Inc., and (B) any Permitted Financing Agreement pursuant to which (I) the Equity Securities of the Issuer to be issued thereunder are convertible into the Shares at an effective conversion price of no less than the Per Share Purchase Price, and (II) the Permitted Financing Proceeds thereunder will be funded prior to (and not subject to) the consummation of the Transaction (the agreements in (A) and (B) are collectively referred to as the “Excluded Subscription Agreements”), will not contain any terms (other than the Excluded Terms as applied mutatis mutandis) that provide a greater economic benefit with respect to such Equity Securities of the Issuer to be received by the Financing Party than the benefits to be received by the Investor under this Agreement.
(j) None of the Equity Subscription Agreements shall be amended, modified or terminated, and no provision thereof may be waived, in each case, in any way which would adversely affect the rights of the Investor in a manner disproportionate to any adverse effect such amendment, modification, termination or waiver would have on the rights of any of the same fromOther Equity Investors. In addition, no Permitted Financing Agreement shall be entered into, amended, modified or terminated, and no provision thereof may be waived, in each case, in any way which would adversely affect the rights of the Investor solely with respect to the Shares in a manner disproportionate to any adverse effect such amendment, modification, termination or waiver would have on the rights of any Financing Party solely with respect to the Equity Securities of the Issuer to be received by such Financing Party pursuant to the applicable Permitted Financing Agreement. In addition, if the Issuer provides any terms more favorable to any of the Other Equity Investors with respect to the Shares under the Equity Subscription Agreements (but excluding the Excluded Terms) or terms more favorable to any of the Financing Parties with respect to the Equity Securities of the Issuer under the Permitted Financing Agreements (but excluding the Excluded Terms as applied mutatis mutandis) than those terms provided to the Investor, either directly or indirectly by amendment, merger, consolidation, recapitalization, reclassification, or otherwise approached or negotiated in respect thereof withotherwise, the Issuer shall promptly provide the Investor with written notice thereof, and, upon written request of the Investor, any person other than additional information related to such terms as may be reasonably requested by the PIPE Investors Investor. In the event the Investor determines that such terms are preferable to the terms contemplated herein and other Institutional Accredited Investorsseeks to receive any such terms, each the Investor shall notify the Issuer in writing within 10 days of which has been offered the Shares at a private sale for investmentreceipt of the Issuer’s notice. “Institutional Accredited Promptly after receipt of such written notice from the Investor” means an institutional accredited investor as defined , the Issuer agrees to amend and restate any required documents to provide identical terms to the Investor. Notwithstanding anything to the contrary in Rule 501(a)(1)this Agreement, (2), (3this Section 4.1(j) or (7) under shall not apply to the Securities ActExcluded Subscription Agreements.
Appears in 3 contracts
Samples: Strategic Investment Agreement (ECARX Holdings Inc.), Strategic Investment Agreement (COVA Acquisition Corp.), Strategic Investment Agreement (COVA Acquisition Corp.)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing Date, as follows:
(a) 2.2.1 The Issuer is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has State of Delaware, with all corporate power (corporate 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) At 2.2.2 When issued and delivered to Subscriber against full payment for the Closing, subject to the receipt of the Subscription Amount Subscribed Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Subscribed Shares will have been duly authorized and will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights rights, whether created under the Issuer’s organizational documents (as in effect at such time certificate of issuance) incorporation or bylaws or under the laws of the Cayman IslandsDelaware General Corporation Law.
(c) 2.2.3 This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the Investorother signatories hereto, is the valid and binding obligation of the Issuer, and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4 The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Subscribed Shares at the Closing and the consummation of the other transactions contemplated herein, 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ability validity of the Subscribed Shares or the legal authority of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a collectively, an “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5 Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Shares under the Securities Act.
2.2.6 Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Shares and neither the Issuer, nor any person acting on its behalf has offered any of the Subscribed Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7 Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of an aggregate of 155,000,000 shares of Class A Common Stock for an aggregate purchase price of $1,550,000,000 (eincluding the Subscribed Shares purchased and sold under this Subscription Agreement). There are no Other Subscription Agreements, side letter agreements or other agreements or understandings (including written summaries of any oral understandings) with any Other Subscriber or any other investor or potential investor with respect to the purchase of securities of the Issuer or the SPAC (other than pursuant to the Forward Purchase Agreements or the Business Combination Agreement) (collectively, the “PIPE Agreements”) which include terms and conditions that are materially more advantageous to any such Other Subscriber, investor or potential investor (as compared to Subscriber) other than PIPE Agreements with certain Other Subscribers with pre-existing relationships with the Founders solely to the extent such PIPE Agreements provide for a cash fee to such Other Subscribers in an amount equal to the fees that would have otherwise been payable by the SPAC to the Placement Agents if such Other Subscribers did not have the pre-existing relationship with the Founders, but is not payable by the SPAC to the Placement Agents as a result of such pre-existing relationship with the Founders. The Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement.
2.2.8 As of the date of this Subscription Agreement, the authorized share capital of the Issuer consists of 1,000 shares of common stock, 1,000 of which are issued and outstanding. All issued and outstanding shares of the Issuer’s common stock have been duly authorized and validly issued, are fully paid, non-assessable and are not subject to preemptive rights. Except as set forth above and pursuant to the Other Subscription Agreements, the Business Combination Agreement (a true and correct copy of which has been provided to Subscriber) and the Forward Purchase Agreements, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any shares of the Issuer’s common stock, or any other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than as contemplated by the Business Combination Agreement and the Transaction Agreements.
2.2.9 Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (i) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Subscribed Shares by the Issuer to Subscriber and (ii) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local Governmental Authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act and applicable state securities laws and filings required to consummate the Transactions as provided under the Business Combination Agreement.
(f) Neither 2.2.10 As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened, Actions, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. As of the date hereof, there is no unsatisfied judgment or any open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.11 The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer Material Adverse Effect. The Issuer has not received any written communication from a governmental entity that alleges that the Issuer nor anyone acting on its behalf has offered 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, individually or in the Shares aggregate, be reasonably expected to have an Issuer Material Adverse Effect.
2.2.12 The Issuer is not required to obtain any consent, waiver, authorization or order of, give any similar securities for sale notice to, or solicited make any offer to buy 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 same fromSubscribed Shares), other than (i) filings with the Commission, (ii) filings required by applicable state securities laws, (iii) filings required in accordance with Section 4, (iv) those required by the New York Stock Exchange (the “NYSE”) or Nasdaq, and (v) those, the failure of which to give, make or obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.13 Immediately following the closing of the Transactions, the SPAC will be a wholly owned subsidiary of the Issuer and there will be no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the SPAC any equity interests in the SPAC, or otherwise approached securities convertible into or negotiated exchangeable or exercisable for such equity interests.
2.2.14 No broker, finder or other financial consultant has acted on behalf of the Issuer in respect thereof connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on Subscriber.
2.2.15 The Issuer is classified as a Subchapter C corporation for U.S. federal income tax purposes.
2.2.16 The Issuer acknowledges that, notwithstanding anything herein to the contrary, the Subscribed Shares may be pledged by Subscriber in connection with a bona fide margin agreement, provided such pledge shall be (i) pursuant to an available exemption from the registration requirements of the Securities Act or (ii) pursuant to, and in accordance with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) registration statement that is effective under the Securities ActAct at the time of such pledge, and Subscriber effecting a pledge of Subscribed Shares shall not be required to provide the Issuer with any notice thereof; provided, however, that neither the Issuer or its counsel shall be required to take any action (or refrain from taking any action) in connection with any such pledge.
Appears in 3 contracts
Samples: Subscription Agreement (Cannae Holdings, Inc.), Subscription Agreement (Fidelity National Financial, Inc.), Subscription Agreement (Foley Trasimene Acquisition Corp.)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing Date, as follows:
(a) 2.2.1 The Issuer is an exempted company duly incorporated, validly existing and in good standing under the laws of Bermuda (by which we mean that the Cayman Islands. The Issuer has paid all fees due to the Bermuda Government which are currently required in order for the Issuer to maintain its existence in Bermuda), with all requisite power (corporate 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) At 2.2.2 The Subscribed Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Closing, subject to the receipt of the Subscription Amount Subscribed Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Subscribed Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights whether created under the Issuer’s organizational documents (bye-laws or similar constitutive agreements or under the Companies Xxx 0000 of Bermuda, as in effect at such time of issuance) or the laws of the Cayman Islandsamended.
(c) 2.2.3 This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the Investorother signatories hereto, is the valid and binding obligation of the Issuer, is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4 The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Subscribed Shares and the consummation of the other transactions contemplated herein, 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ability validity of the Common Shares or the legal authority of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a collectively, an “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
(e) Assuming 2.2.5 Neither the accuracy Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Investor’s representations and warranties set forth Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Shares under the Securities Act.
2.2.6 Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in Section 4.2section 502(c) of Regulation D under the Securities Act, in connection with the offer, offer or sale and delivery of any of the Subscribed Shares in and neither the manner contemplated by this Subscription AgreementIssuer, no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to the Investor.
(f) Neither the Issuer nor anyone any person acting on its behalf has offered the Shares or any similar securities for sale to, or solicited any offer to buy any of the same fromSubscribed Shares in a manner involving a public offering under, or otherwise approached or negotiated in respect thereof witha distribution in violation of, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities ActAct or any state securities laws.
Appears in 3 contracts
Samples: Subscription Agreement (Cannae Holdings, Inc.), Subscription Agreement (Fidelity National Financial, Inc.), Subscription Agreement (Foley Trasimene Acquisition II)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing, as follows:
(a) 2.2.1 The Issuer is an exempted company a corporation duly incorporated, organized and validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all State of Israel, with corporate power (corporate 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, the Other Subscription Agreements and the Business Combination Agreement (collectively, the “Transaction Documents”).
(b) At 2.2.2 The Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Closing, subject to the receipt of the Subscription Amount Shares in accordance with the terms of this Subscription Agreement and registration on the Issuer’s register of membersAgreement, the Shares will be duly authorized, validly issued and allotted and fully paid, free and clear of any liens or other liens, encumbrances (other than those arising under applicable securities laws) ), validly issued, fully paid and non-assessable and will not have been issued in violation of of, or subject to any preemptive or similar rights created under under, the Issuer’s organizational documents (as in effect at such time Articles of issuance) Association or under the laws Laws of the Cayman IslandsState of Israel.
(c) This Subscription Agreement has 2.2.3 The Transaction Documents have been duly authorized, executed and delivered by the Issuer and, assuming assuming, solely with respect to this Subscription Agreement, that this Subscription Agreement constitutes the a valid and binding obligation of Subscriber, then the Investor, is Transaction Documents constitute the valid and binding obligations of the Issuer and are enforceable against it the Issuer in accordance with its their respective terms, except as may be limited or otherwise affected by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating affecting generally the enforcement of creditors’ rights or subject to or affecting the rights of creditors generally and (ii) general principles of equity, whether considered at law or equity.
(d) 2.2.4 The issuance execution, delivery and sale performance of the Shares and the Transaction Documents (including compliance by the Issuer with all of the provisions thereof), issuance and sale of this Subscription Agreement the Shares and the consummation of the certain other transactions contemplated herein, therein will not (i) conflict with 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 upon, any of the property or assets of the Issuer pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the legal authority or ability of the Issuer to enter into and or timely perform its obligations under the Transactions Documents, including the sale and issuance of the Shares pursuant to 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.
2.2.5 As of the date of this Subscription Agreement, the authorized share capital of the Issuer is NIS 2,594,938.50 divided into (ei) 140,000,000 Ordinary Shares, par value NIS 0.01 each (the “Existing Ordinary Shares”), (ii) 10,994,000 Series A Preferred Shares, par value NIS 0.01 each (the “Preferred A Shares”), (iii) 1,709,850 Series A-1 Preferred Shares, par value NIS 0.01 each (the “Preferred A-1 Shares”), (iv) 16,815,000 Series B Preferred Shares, par value NIS 0.01 each (the “Preferred B Shares”), (v) 17,950,000 Series C-1 Preferred Shares, par value NIS 0.01 each(the “Preferred C-1 Shares”), (vi) 3,925,000 Series C-2 Preferred Shares, par value NIS 0.01 each (the “Preferred C-2 Shares”), (vii) 42,500,000 Series D-1 Preferred Shares, par value NIS 0.01 each (the “Preferred D-1 Shares”), (viii) 7,000,000 Series D-2 Preferred Shares, par value NIS 0.01 each (the “Preferred D-2 Shares”), (ix) 5,800,000 Series D-3 Preferred Shares, par value NIS 0.01 each (the “Preferred D-3 Shares”), (x) 3,200,000 Series D-4 Preferred Shares, par value NIS 0.01 each (the “Preferred D-4 Shares”), and (xi) 9,600,000 Series D-5 Preferred Shares, par value NIS 0.01 each (the “Preferred D-5 Shares”). As of the date hereof: (i) 13,556,007 Ordinary Shares are issued and outstanding, (ii) 9,994,000 Preferred A Shares are issued and outstanding, (iii) 1,709,850 Preferred A-1 Shares are issued and outstanding, (iv) 16,811,112 Preferred B Shares are issued and outstanding, (v) 9,428,276 Preferred C-1 Shares are issued and outstanding, (vi) 1,750,967 Preferred C-2 Shares are issued and outstanding, (vii) 23,667,073 Preferred D-1 Shares are issued and outstanding, (viii) 5,600,870 Preferred D-2 Shares are issued and outstanding, (ix) 4,604,678 Preferred D-3 Shares are issued and outstanding, (x) no Preferred D-4 Shares are issued and outstanding, and (xi) 5,973,528 Preferred D-5 Shares are issued and outstanding. As of the date of this Subscription Agreement, the Issuer has outstanding (i) warrants exercisable for 9,428,276 Preferred C-1 Shares, (ii) warrants exercisable for 1,445,360 Preferred D-1 Shares, and (iii) options to purchase 11,784,887 ordinary shares under the Issuer’s 2015 Equity Incentive Plan. In addition, certain shareholders are party to subscription agreements under which they are obligated to purchase 7,646,002 Preferred D-1 Shares and upon such purchase will receive warrants exercisable for 191,149 Preferred D-1 Shares. All (i) issued and outstanding Ordinary Shares, Preferred A Shares, Preferred A-1 Shares, Preferred B Shares, Preferred C-1 Shares, Preferred C-2 Shares, Preferred D-1 Shares, Preferred D-2 Shares, Preferred D-3 Shares and Preferred D-5 Shares have been duly authorized and validly issued, are fully paid and nonassessable and are not subject to preemptive rights and (ii) outstanding warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. As of the date hereof, except as set forth above and pursuant to (i) the Other Subscription Agreements, and (ii) the Business Combination Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any Ordinary Shares, Preferred A Shares, Preferred A-1 Shares, Preferred B Shares, Preferred C-1 Shares, Preferred C-2 Shares, Preferred D-1 Shares, Preferred D-2 Shares, Preferred D-3 Shares and Preferred D-5 Shares or other equity interests in the Issuer (collectively, “Equity Interests”) or securities convertible into or exchangeable or exercisable for Equity Interests. There are no securities or instruments issued by or to which the Issuer is a party containing antidilution or similar provisions that will be triggered by the issuance of (i) the Shares or (ii) the Ordinary Shares to be issued pursuant to any Other Subscription Agreement. Immediately following the Closing Date, there will be no stockholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any Equity Interests, other than as contemplated by the Business Combination Agreement. There are no outstanding contractual obligations of the Issuer to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other person or entity.
2.2.6 Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (i) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to Subscriber and (ii) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any U.S. federal, state or local governmental authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by the Transaction Documents, except for filings pursuant to Regulation D of the Securities Act and applicable state securities laws and filings required to consummate the Transactions as provided under the Business Combination Agreement and any other consents, approvals, orders, authorizations, registrations, qualifications, designations, declarations or filings, the absence of which would not have an Issuer Material Adverse Effect.
(f) 2.2.7 The Issuer has provided Subscriber an opportunity to ask questions regarding the Issuer and made available to Subscriber all the information reasonably available to the Issuer that Subscriber has reasonably requested to make an investment decision with respect to the Shares.
2.2.8 The Issuer is not, and immediately after receipt of payment for the Shares will not be, an “investment company” within the meaning of the Investment Company Act of 1940.
2.2.9 Neither the Issuer Issuer, nor anyone any person acting on its behalf has offered the Shares has, directly or indirectly, made any similar offers or sales of any securities for sale to, of Issuer or solicited any offer offers to buy any securities of Issuer under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the same fromSecurities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares under the Securities Act.
2.2.10 No Disqualification Event is applicable to the Issuer or, to the Issuer’s knowledge, any Issuer Covered Person (as defined below), except for a Disqualification Event as to which Rule 506(d)(2)(ii)-(iv) or otherwise approached or negotiated in (d)(3) under the Securities Act is applicable. The Issuer has complied, to the extent applicable, with any disclosure obligations under Rule 506(e) under the Securities Act. “Issuer Covered Person” means, with respect thereof withto the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person other than listed in the PIPE Investors and other Institutional Accredited Investors, each first paragraph of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7506(d)(1) under the Securities Act.
Appears in 2 contracts
Samples: Subscription Agreement (Memic Innovative Surgery Ltd.), Subscription Agreement (MedTech Acquisition Corp)
Issuer’s Representations, Warranties and Agreements. The Issuer hereby represents and warrants to the Investor as follows:
(a) The Issuer is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all power (corporate or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and contemplated to be conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
(b) At the Closing, subject the Issuer Shares will have been duly authorized, and when issued and delivered to the receipt of Investor against (i) full payment in cash for the Subscription Amount Issuer Shares in accordance with the terms of this Subscription Agreement if the Investor elects the Cash Option or (ii) issuance of the Investor Shares in full in accordance with the terms of this Agreement if the Investor elects the Share Issuance Option, and registration on in each case registered in the Issuer’s register of members, the Issuer Shares will be duly authorized, validly issued and allotted and fully paidpaid and non-assessable, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) or the laws of the 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 obligation of the Investor, is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
(d) The issuance and sale of the Issuer 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 pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under 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 Investor’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery of the Issuer Shares in the manner contemplated by 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 Issuer Shares by the Issuer to the Investor. The Issuer Shares (i) were not offered to the Investor by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
(f) Neither The Issuer will use the cash proceeds of the sale of the Issuer nor anyone acting on its behalf has offered Shares contemplated by the Shares Equity Subscription Agreements and this Agreement exclusively to operate the Issuer’s business post-Closing and will not, directly or any similar securities for sale toindirectly, or solicited in any offer way, use the proceeds, or lend, contribute or otherwise make available such proceeds to buy any affiliates, subsidiaries, or its parent or other person or entity, for the purpose of financing the activities of any person, entity or country currently subject to sanctions imposed by any of the same fromlaws of a relevant and applicable jurisdiction, or otherwise approached or negotiated including the jurisdiction(s) in respect thereof withwhich the Agreement will take place, any person other than the PIPE Investors and other Institutional Accredited Investors, each United States (including sanctions programs administered by the US Department of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1Treasury’s Office of Foreign Assets Control), United Kingdom and the European Union.
(2)g) If the Issuer will receive the Investor Shares due to the Investor’s election of the Share Issuance Option pursuant to this Agreement, the Issuer (3i) or is an “accredited investor” (7within the meaning of Rule 501(a) under the Securities Act), (ii) is acquiring the Investor Shares only for its own account and not for the account of others, and (iii) is not acquiring the Investor Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act.
(h) If the Issuer will receive the Investor Shares due to the Investor’s election of the Share Issuance Option pursuant to this Agreement, the Issuer acknowledges and agrees that (i) the Investor Shares were not offered by any form of general solicitation or general advertising and are being offered in a transaction not involving any public offering within the meaning of the Securities Act and, that the Investor Shares have not been registered under the Securities Act and the Investor is not required to register the Investor Shares except as set forth in Section 6, (ii) the Investor Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Issuer absent an effective registration statement under the Securities Act, except (A) to the Investor or a subsidiary thereof, (B) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of and in compliance with Regulation S under the Securities Act or (C) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in each case, in accordance with any applicable securities laws of the states of the United States and other applicable jurisdictions, and that any book-entry position or certificates representing the Investor Shares shall contain a restrictive legend to such effect, (iii) the Investor Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Issuer may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Investor Shares and may be required to bear the financial risk of an investment in the Investor Shares for an indefinite period of time, (iv) the Investor Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least six months from the issuance date thereof and to the extent Rule 144 is available, and (v) it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, transfer, pledge or disposition of any of the Investor Shares.
(i) If the Issuer will receive the Investor Shares due to the Investor’s election of the Share Issuance Option pursuant to this Agreement, the Issuer acknowledges and agrees that (i) the Issuer is purchasing the Investor Shares directly from the Investor and (ii) there have been no representations, warranties, covenants and agreements made to the Issuer by or on behalf of the Investor, any of its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of the Investor expressly set forth in Section 4.2 of this Agreement.
(j) If the Investor elects the Share Issuance Option, the Issuer acknowledges and agrees that (i) the Issuer has received such information as the Issuer deems necessary in order to make an investment decision with respect to the Investor Shares, including, with respect to the Investor and the business of the Investor and its subsidiaries, (ii) the Issuer has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Investor, and (iii) the Issuer is capable of bearing the economic risks of such investment, including a complete loss of its investment.
(k) If the Investor elects the Share Issuance Option, the Issuer acknowledges and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Investor Shares or made any findings or determination as to the fairness of this investment.
(l) The Issuer is not (i) a person or entity named on the Specially Designated Nationals and Blocked Persons List administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC, or a person or entity prohibited by any OFAC Sanctions program, or any similar list of sanctioned persons administered by the European Union or the United Kingdom (collectively, “Sanctions Lists”); (ii) directly or indirectly, owned or controlled by, or acting on behalf of, one or more persons that are named on the Sanctions Lists; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national or the government, including any political subdivision, agency or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union or the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (each, a “Prohibited Investor”). The Issuer agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided that the Issuer is permitted to do so under applicable law. To the extent required, the Issuer maintains procedures that it reasonably believes to be in compliance with sanctions programs administered by the United States, the European Union and the United Kingdom. To the extent required and from and after the closing of the Transaction, the Issuer shall maintain procedures adequate and necessary to ensure its compliance with sanctions programs administered by the United States, the European Union and the United Kingdom, and the Issuer shall comply with such sanctions programs to which it is legally subject and with which it is legally obligated to comply.
(m) No broker, finder or other financial consultant is acting on behalf of the Issuer in connection with this Agreement or the transactions contemplated hereby in such a way as to create any liability of the Investor for the payment of any fees, costs, expenses or commissions.
(i) The Equity Subscription Agreements reflect or will reflect the same Per Share Purchase Price and other material terms and conditions (including the registration rights) with respect to the purchase of the Issuer Shares that are no more favorable to any Other Equity Investor thereunder in any material respect than the terms of this Agreement, other than terms particular to the issuance of the Investor Shares to the Issuer hereunder (if the Investor elects the Share Issuance Option), SPAC as a signing party thereto, the nature of cash investment by such Other Equity Investor, the regulatory requirements of the Other Equity Investors or their respective affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of the related Issuer Shares (collectively, the “Excluded Terms”), and (ii) any Permitted Financing Agreement to the extent it provides for the issuance of Equity Securities of the Issuer, other than (A) the convertible note purchase agreement dated May 9, 2022 by and between the Issuer and Lotus Technology Inc. and the convertible note dated May 13, 2022 issued by the Issuer to Lotus Technology Inc., and (B) any Permitted Financing Agreement pursuant to which (I) the Equity Securities of the Issuer to be issued thereunder are convertible into the Issuer Shares at an effective conversion price of no less than the Per Share Purchase Price, and (II) the Permitted Financing Proceeds thereunder will be funded prior to (and not subject to) the consummation of the Transaction (the agreements in (A) and (B) are collectively referred to as the “Excluded Subscription Agreements”), will not contain any terms (other than the Excluded Terms as applied mutatis mutandis) that provide a greater economic benefit with respect to such Equity Securities of the Issuer to be received by the Financing Party than the benefits to be received by the Investor under this Agreement.
(o) None of the Equity Subscription Agreements shall be amended, modified or terminated, and no provision thereof may be waived, in each case, in any way which would adversely affect the rights of the Investor in a manner disproportionate to any adverse effect such amendment, modification, termination or waiver would have on the rights of any of the Other Equity Investors. In addition, no Permitted Financing Agreement shall be entered into, amended, modified or terminated, and no provision thereof may be waived, in each case, in any way which would adversely affect the rights of the Investor solely with respect to the Issuer Shares in a manner disproportionate to any adverse effect such amendment, modification, termination or waiver would have on the rights of any Financing Party solely with respect to the Equity Securities of the Issuer to be received by such Financing Party pursuant to the applicable Permitted Financing Agreement. In addition, if the Issuer provides any terms more favorable to any of the Other Equity Investors with respect to the Issuer Shares under the Equity Subscription Agreements (but excluding the Excluded Terms) or terms more favorable to any of the Financing Parties with respect to the Equity Securities of the Issuer under the Permitted Financing Agreements (but excluding the Excluded Terms as applied mutatis mutandis) than those terms provided to the Investor, either directly or indirectly by amendment, merger, consolidation, recapitalization, reclassification, or otherwise, the Issuer shall promptly provide the Investor with written notice thereof, and, upon written request of the Investor, any additional information related to such terms as may be reasonably requested by the Investor. In the event the Investor determines that such terms are preferable to the terms contemplated herein and seeks to receive any such terms, the Investor shall notify the Issuer in writing within 10 days of the receipt of the Issuer’s notice. Promptly after receipt of such written notice from the Investor, the Issuer agrees to amend and restate any required documents to provide identical terms to the Investor. Notwithstanding anything to the contrary in this Agreement, this Section 4.1(o) shall not apply to the Excluded Subscription Agreements.
Appears in 2 contracts
Samples: Strategic Investment Agreement (ECARX Holdings Inc.), Strategic Investment Agreement (COVA Acquisition Corp.)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to the Investor Subscriber and Placement Agents and agrees with Subscriber and Placement Agents as follows:
(a) 2.2.1. The Issuer is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all Islands (to the extent such concept exists in such jurisdiction), with corporate power (corporate 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. As of the Closing Date, following the Domestication, Issuer will be duly incorporated, validly existing as a corporation and in good standing under the laws of the State of Delaware.
(b) At 2.2.2. The Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Closing, subject to the receipt of the Subscription Amount Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paidnon-assessable, free and clear of any all liens or other encumbrances restrictions (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) documents, under the Companies Act, the DGCL or pursuant to any agreement or other instrument to which the laws of the Cayman IslandsIssuer is a party or by which it is otherwise bound.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the Investor, valid and binding obligation of the Issuer and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
(d) 2.2.4. The execution, delivery and performance by the Issuer of this Subscription Agreement, issuance and sale of the Shares and the compliance by the Issuer with all of the provisions of this Subscription Agreement and the consummation of the certain other transactions contemplated herein, 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 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 or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of the Issuer or to have a material adverse effect on the legal authority or ability of the Issuer to enter into and or timely perform its obligations under this Subscription Agreement (a an “Issuer Material Adverse Effect”), (ii) result in any breach or violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or bodyGovernmental Authority, domestic or foreign, having jurisdiction over the Issuer or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any Issuer security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration under the Securities Act of the Shares to be issued as contemplated hereby.
2.2.6. Neither the Issuer nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Shares and neither the Issuer nor any person acting on its behalf offered any of the Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of certain PIPE Securities. Neither Issuer nor any of its affiliates has entered into any side letter agreements or other agreements or understandings (eincluding written summaries of any oral understandings) with any Other Subscriber or any other investor in connection with such Other Subscriber’s or investor’s direct or indirect equity investment in the Issuer, other than (a) Other Subscription Agreements, or (b) the Merger Agreement (or as expressly contemplated by the Merger Agreement). The Other Subscription Agreements reflect the same Per Share Price and terms and conditions that are not more advantageous to any Other Subscriber thereunder than the terms and condition hereunder (other than terms particular to the regulatory requirements of such Subscriber or its affiliates or related funds). The Other Subscription Agreements have not been amended in any material respect following the date of this Subscription Agreement.
2.2.8. The authorized capital stock of the Issuer as of the date of this Subscription Agreement consists of 550,000,000 shares as follows: (a) 500,000,000 Class A Ordinary Shares, par value $0.0001 per share, (b) 50,000,000 Class B Ordinary Shares, par value $0.0001 per share (“Authorized Class B Shares”) and (c) 5,000,000 Preference Shares, par value $0.0001 per share (“Authorized Preference Shares”). Following the Domestication, the authorized capital stock of the Issuer will consist of 10,000,000 shares of preferred stock, par value $0.0001 per share and 1,000,000,000 shares of Domesticated Issuer Common Stock. As of the date hereof, and as of immediately prior to the completion of the Acquisition (prior to giving effect to (x) any redemption of any Class A Ordinary Shares held by the Issuer’s public shareholders in connection with the consummation of the Acquisition and (y) the issuance of the PIPE Securities): (i) 34,500,000 Class A Ordinary Shares are and will be issued and outstanding; (ii) 8,625,000 Authorized Class B Shares are and will be issued and outstanding; and (iii) no Authorized Preference Shares are or will be issued or outstanding; (iv) 4,450,000 warrants to purchase an aggregate of 4,450,000 Class A Ordinary Shares (the “Private Placement Warrants”) are and will be outstanding; and (v) 8,625,000 warrants to purchase an aggregate of 8,625,000 Class A Ordinary Shares (the “Public Warrants,” and together with the Private Placement Warrants, the “Warrants”) are and will be outstanding. All (A) issued and outstanding Class A Ordinary Shares and Class B Ordinary Shares have been duly authorized and validly issued, are fully paid and are non-assessable and (B) outstanding Warrants have been duly authorized and validly issued. Except as set forth above and pursuant to the Other Subscription Agreements, the Merger Agreement and the other agreements and arrangements referred to therein, as of the date hereof, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from Issuer any Class A Ordinary Shares, Class B Ordinary Shares or other equity interests in Issuer or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, Issuer has no subsidiaries, other than First Merger Sub and Second Merger Sub (each as defined in the Merger Agreement), and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which Issuer is a party or by which it is bound relating to the voting of any securities of Issuer, other than (1) as set forth in the SEC Documents and (2) as contemplated by the Merger Agreement.
2.2.9. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (x) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to Subscriber contemplated by this Subscription Agreement and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local Governmental Authority is required on the Investorpart of the Issuer in connection with such offer and sale of Shares contemplated by this Subscription Agreement.
2.2.10. The Issuer has made available to Subscriber (fincluding via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission of this Subscription Agreement (the “SEC Documents”), which SEC Documents complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents at the time of filing, except as to the historical accounting treatment of the Warrants. Except as to the historical accounting treatment of Warrants in the Issuer’s 8-K dated March 10, 2021, each of the financial statements (including, in each case, any notes thereto) contained in the SEC Documents was prepared in accordance with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the Commission) and each fairly presents, in all material respects, the financial position, results of operations and cash flows of the Issuer as at the respective dates thereof and for the respective periods indicated therein. None of the 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 the light of the circumstances under which they were made, not misleading. Except for the Issuer’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2021, the Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception. There are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the SEC Documents.
2.2.11. There are no pending or, to the knowledge of the Issuer, threatened, actions, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. There is no unsatisfied judgment or any open injunction binding upon the Issuer which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.12. Except for the Placement Agents, the Issuer has not paid, and is not obligated to pay, any brokerage, finder or other commission or similar fee in connection with the issuance and sale of the Shares.
2.2.13. The Issuer is in compliance with all applicable laws, except where such non-compliance would not, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. The Issuer has not received any written communication 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, individually or in the aggregate, be reasonably expected to have an Issuer Material Adverse Effect.
2.2.14. The issued and outstanding Issuer’s Class A Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the New York Stock Exchange (the “NYSE”) under the symbol “SNII.” The Issuer is in compliance in all material respects with the rules of the NYSE and there is no action pending or, to the knowledge of the Issuer, threatened against the Issuer by the NYSE or the Commission with respect to any intention by such entity to deregister the Issuer’s Class A Ordinary Shares or terminate the listing of the Issuer’s ordinary shares on the NYSE, except as disclosed in the SEC Documents relating to the late filing of the Issuer’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2021. None of the Issuer or its affiliates has taken any action in an attempt to terminate the registration of the Issuer’s Class A Ordinary Shares under the Exchange Act except as contemplated by the Merger Agreement. The Issuer has not received any notice from the NYSE or the Commission regarding the revocation of such listing or otherwise regarding the delisting of the Issuer’s Class A Ordinary Shares from the NYSE or the Commission, except as disclosed in the SEC Documents relating to the late filing of the Issuer’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2021.
2.2.15. 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 Shares or (ii) the shares of Domesticated Issuer Common Stock to be issued pursuant to any Other Subscription Agreement.
2.2.16. Neither the Issuer nor anyone acting on any of its behalf has offered subsidiaries is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.2.17. Issuer acknowledges and agrees that, notwithstanding anything herein to the contrary, the Shares may be pledged by Subscriber in connection with a bona fide margin agreement, which shall not be deemed to be a transfer, sale or any similar securities for sale to, or solicited any offer to buy any assignment of the same fromShares hereunder, and Issuer effecting a pledge of Shares shall not be required to provide Issuer with any notice thereof or otherwise approached or negotiated in respect thereof with, make any person other than the PIPE Investors delivery to Issuer pursuant to this Subscription Agreement. Issuer hereby agrees to execute and other Institutional Accredited Investors, each deliver such documentation as a pledgee of which has been offered the Shares at may reasonably request in connection with a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under pledge of the Securities ActShares to such pledgee by Subscriber.
Appears in 2 contracts
Samples: Subscription Agreement (Supernova Partners Acquisition Co II, Ltd.), Subscription Agreement (Supernova Partners Acquisition Co II, Ltd.)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares and the Warrants, the Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a corporation in good standing under the laws of the Cayman Islands. The Issuer has all Delaware General Corporation Law (“DGCL”), with corporate power (corporate 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) At 2.2.2 When issued and delivered to Subscriber against full payment for the Closing, subject to Shares and the receipt of the Subscription Amount Warrants in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares and the Warrants will be duly authorized, validly issued issued, fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents amended and restated certificate of incorporation (as in effect at such time of issuancethe “Charter”) or under the laws DGCL. The shares of Class A common stock issuable upon exercise of the Cayman IslandsWarrants (the “Warrant Shares”), when issued in accordance with the terms of the Warrants, 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 Issuer’s certificate of incorporation or under the DGCL.
(c) 2.2.3 This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the Investorvalid and binding obligation of the Issuer, is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4 The Issuer is classified as a Subchapter C corporation for U.S. federal income tax purposes.
2.2.5 The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), issuance and sale of this Subscription Agreement the Shares and the Warrants and the consummation of the certain other transactions contemplated hereinherein will not, will not subject to the receipt of the Buyer Stockholder Approval (as defined in the Study Merger Agreement) and the effectiveness of the Buyer A&R Charter Amendment (as defined in the Study Merger Agreement), (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 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 or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ability legal authority of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries or (iii) assuming each of the consents, authorizations and approvals referred to in Section 2.2.6 are obtained and each of the filings referred to in Section 2.2.6 are made and any applicable waiting periods referred to therein have expired, 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 subsidiaries or any of their respective properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.6 Subject to the receipt of the Buyer Stockholder Approval and the effectiveness of the Buyer A&R Charter Amendment and except for (ei) applicable filing, notification, waiting period or approval requirements under applicable Antitrust Laws (including the HSR Act), and (ii) solely to the extent Subscriber has elected to deliver the Second Step Investment Notice, the submission of a voluntary notice to CFIUS and receipt of CFIUS Approval, no consents or approvals of, or notices to or filings, declarations or registrations with, any governmental authority of competent jurisdiction are necessary for the execution and delivery of this Subscription Agreement by the Issuer and the consummation by the Issuer of the Subscription, other than as would not reasonably be expected to have an Issuer Material Adverse Effect.
2.2.7 Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares or the Warrants under the Securities Act.
2.2.8 Neither the Issuer nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Shares or the Warrants and neither the Issuer nor any person acting on its behalf offered any of the Shares or the Warrants in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.9 The Issuer acknowledges that there have been no representations, warranties, covenants or agreements made to the Issuer by Subscriber or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement.
2.2.10 As of the date of this Subscription Agreement, the authorized capital shares of the Issuer consists of (a) 200,000,000 shares of Class A common stock, (b) 20,000,000 shares of Class B common stock, par value $0.0001 per share (“Class B common stock”); and (c) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Shares”). As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) 69,000,000 shares of Class A common stock are issued and outstanding; (iii) 17,250,000 shares of Class B common stock are issued and outstanding; (iv) 15,800,000 warrants to purchase 15,800,000 shares of Class A common stock (the “Private Placement Warrants”) are outstanding; and (v) 23,000,000 warrants to purchase 23,000,000 shares of Class A common stock (the “Public Warrants”) are outstanding. Subject to the receipt of the Buyer Stockholder Approval and the effectiveness of the Buyer A&R Charter Amendment, all (i) issued and outstanding shares of Class A common stock and Class B common stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding Private Placement Warrants and Public Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. Except as set forth above and as contemplated by the Study Merger Agreement or the Magnet Merger Agreement and except for any Class A common stock or any warrants exercisable for shares of Class A common stock committed to be issued or issued after the date hereof at a purchase price, or at an exercise price, as applicable, equal to or greater than ten dollars ($10.00) per share (before calculating any transaction expenses, original issuance discounts or other similar premiums, charges and expenses that are customary for issuances of equity or equity-linked securities in connection with a private investment in a public company) or any shares of Class A common stock issued in respect thereof or in respect of the equity interests set forth above, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any shares of Class A common stock or Class B common stock, or any other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, the Issuer has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Study Merger Agreement.
2.2.11 Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (x) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to Subscriber and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act and applicable state securities laws.
2.2.12 The Issuer has made available to Subscriber (fincluding via the Securities and Exchange Commission’s (the “Commission”) Neither XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”). None of the 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. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the SEC Documents.
2.2.13 The Joint Proxy Statement and Joint Proxy Statement/Prospectus, when filed with the Commission, at the time of any amendment or supplement thereto, at the time of any publication, distribution or dissemination thereof, will comply as to form in all material respects with the applicable requirements of the Exchange Act and all other applicable laws and will not contain any untrue statement of a material fact or omit 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; provided, however, that no representation or warranty is made by the Issuer with respect to information supplied by or on behalf of Subscriber, Study or Magnet, in each case, specifically for inclusion in the Joint Proxy Statement or Joint Proxy Statement/Prospectus.
2.2.14 As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened, claims, actions, suits, arbitrations, litigation or proceedings (“Actions”), which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement. As of the date hereof, there is no unsatisfied judgment or any open injunction binding upon the Issuer which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement.
2.2.15 No broker, finder or other financial consultant has acted on behalf of Issuer in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on Subscriber. The Issuer agrees to indemnify and hold harmless Subscriber from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of Issuer and to bear the cost of legal expenses incurred by Subscriber in defending against any such claim.
2.2.16 The Class A common stock of the Issuer is registered pursuant to Section 12(b) of the Exchange Act, and listed for trading on the NYSE. There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by the NYSE or the Commission with respect to any intention by such entity to deregister the Class A common stock or prohibit or terminate the listing of the Class A common stock on the NYSE. The Issuer has taken no action that is designed to terminate the registration of the Class A common stock under the Exchange Act.
2.2.17 Except for employment-related contracts and benefit plans or as otherwise set forth in the SEC Documents and except for Related Party Arrangements (as defined below) disclosed to Subscriber pursuant to this Section 2.2.17, neither the Issuer nor anyone acting on any of its behalf has offered subsidiaries is a party or is otherwise bound by a contract, arrangement or other transaction with any Issuer Related Party (“Related Party Arrangements”), including any such contract, arrangement or other transaction with the Shares Sponsor. “Issuer Related Party” means, collectively, Sponsor, its affiliates, any affiliate of the Issuer and any of their respective current, former and future directors, officers, general or any similar securities for sale tolimited partners, shareholders, members, managers, controlling persons, employees, advisers, agents, attorneys or solicited any offer to buy other representatives and the respective successors and assigns of any of the same fromforegoing persons. The Issuer has made available to Subscriber a true, correct and complete copy of (i) each agreement providing for a Related Party Arrangement and (ii) each agreement between the Issuer or otherwise approached any of its subsidiaries and Study or negotiated in respect thereof withany of its directors, any person other than the PIPE Investors officers and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Actemployees.
Appears in 2 contracts
Samples: Subscription Agreement (Naspers LTD), Subscription Agreement (Churchill Capital Corp II)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the PIPE Closing, as follows:
(a) 2.2.1 The Issuer is an exempted a company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all , with corporate power (corporate 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) At the Closing, subject to the receipt 2.2.2 The issue of the Subscription Amount Shares has been duly authorized and, when issued to Subscriber against full payment for the Shares in accordance with the terms of this Subscription Agreement and registration on the Issuer’s memorandum and articles of association of the Issuer (as amended from time to time) and following the updates to the register of membersmembers of the Company in respect of such Shares in accordance with the Companies Act (As Revised) of the Cayman Islands, the Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paidnon-assessable, free and clear of any all liens or other encumbrances restrictions (other than those arising under this Agreement, the Business Combination Agreement or any applicable securities laws) and will not have been issued in violation of of, or subject to any preemptive or similar rights created under under, the Issuer’s organizational documents memorandum and articles of association (as in effect at such amended from time of issuanceto time) or under the laws Companies Act (As Revised) of the Cayman Islands.
(c) 2.2.3 This Subscription Agreement has been duly authorized, authorized and validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes has been duly authorized, executed and delivered by Subscriber, shall constitute the valid and binding obligation of the Investor, Issuer and is enforceable against it 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 generally, and (ii) principles of equity, whether considered at law or equityequity (including concepts of materiality, reasonableness, good faith and fair dealing with respect to those jurisdictions that recognize such concepts).
2.2.4 The execution, delivery and performance of this Subscription Agreement by the Issuer (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof) and the issuance and sale of this Subscription Agreement the Shares and the consummation of the other transactions contemplated herein, do not and will not (i) conflict with with, or result in a breach or violation of 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 upon, any of the property or assets of the Issuer or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries, as applicable, is a party or by which the Issuer or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of the Issuer or any of its subsidiaries, as applicable, is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries, as applicable, or (iii) result in any violation of any law, statute or any judgment, order, rule rule, regulation or regulation other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer Issuer, the Company or any of its their respective subsidiaries, as applicable, or any of their respective properties that that, in the case of clauses (i) and (iii), would reasonably be expected expected, individually or in the aggregate, to have a an Issuer Material Adverse Effect.
(e) Assuming the accuracy . For purposes of the Investor’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery of the Shares in the manner contemplated by this Subscription Agreement, no registration under an “Issuer Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to the Securities Act Issuer that has a material adverse effect on (x) the assets, business, stockholders’ or shareholders’ equity, results of 1933, as amended (the “Securities Act”) is required for the offer and sale operations or financial operations of the Shares by Issuer and its subsidiaries, taken as a whole (including the combined company after giving effect to the Transactions), (y) the validity of the Shares, or (z) the legal authority of the Issuer to enter into and timely perform its obligations under this Subscription Agreement. Except as set forth in the Investor.
(f) Neither Business Combination Agreement and the other agreements and arrangements referred to therein, as of the date hereof there are no securities or instruments issued by or to which the Issuer nor anyone acting on its behalf has offered is a party containing anti-dilution or similar provisions that will be triggered by the Shares or any similar securities for sale toissuance of (i) the Shares, or solicited (ii) any offer to buy any shares of the same fromIssuer to be issued pursuant to the other Transactions, in each case, that have not been or otherwise approached will not be validly waived or negotiated in respect thereof with, any person other than terminated prior to the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities ActBCA Closing Date.
Appears in 2 contracts
Samples: Subscription Agreement (Ads-Tec Energy Public LTD Co), Subscription Agreement (European Sustainable Growth Acquisition Corp.)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Units, the Issuer hereby represents and warrants to the Investor Subscriber as follows:
(ai) The Issuer is an exempted company a corporation duly incorporated, organized and validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all State of Israel, with corporate power (corporate or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and and, subject to obtaining all approvals necessary for the consummation of the Transactions (collectively, the “Required Approvals”), to enter into, deliver and perform its obligations under this Subscription Agreement.
(bii) At As of the Closing, subject the Shares will have been duly authorized and, when issued and delivered to Subscriber against full payment for the receipt of the Subscription Amount Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of of, or subject to any preemptive or similar rights created under under, the Issuer’s organizational documents (as in effect at such time amended and restated articles of issuance) association or similar constitutive agreements or the laws Laws of the Cayman IslandsState of Israel.
(ciii) As of the Closing, the Warrants will have been duly authorized and, when issued and delivered to Subscriber against full payment for the Warrants in accordance with the terms of this Subscription Agreement and registered with the Issuer’s transfer agent, the Warrants will be validly issued and will not have been issued in violation of, or subject to any preemptive or similar rights created under, the Issuer’s amended and restated articles of association or similar constitutive agreements or the Laws of the State of Israel.
(iv) As of the Closing, all Shares issuable upon exercise of the Warrants will have been duly authorized and reserved for issuance and, upon issuance in accordance with the terms of the Warrants and the Warrant Agreement, will be validly issued, fully paid and not subject to preemptive or similar rights, and will not have been issued in violation of, or subject to any preemptive or similar rights created under, the Issuer’s amended and restated articles of association or similar constitutive agreements or the Laws of the State of Israel.
(v) This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the a valid and binding obligation of the Investorother parties hereto, is enforceable against it the Issuer in accordance with its terms, except as may be limited or otherwise affected by (iA) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally generally, and (iiB) principles of equity, whether considered at law or equity.
(dvi) The issuance Subject to obtaining the Required Approvals and sale assuming the accuracy of the Shares Subscribers’ representations and warranties in Section 3(a), the execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of this Subscription Agreement the Units and the consummation of the transactions contemplated herein, herein do not and will not (iA) conflict with with, or result in a breach or violation of 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 upon, any of the property or assets of the Issuer or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries, as applicable, is a party or by which the Issuer or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of the Issuer or any of its subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to have a material adverse effect on the ability legal authority of the Issuer to enter into and timely perform its obligations under this Subscription Agreement or have a SPAC Material Adverse Effect (a as defined in the Business Combination Agreement) (an “Issuer Material Adverse Effect”), (iiB) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries, as applicable, or (iiiC) 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 subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
(evii) Except as set forth in the Business Combination Agreement and the other agreements and arrangements referred to therein, as of the date hereof 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 (A) the Units, (B) any Ordinary Shares and/or Warrants to be issued pursuant to the Other Subscription Agreements or (C) any shares of capital stock of the Issuer to be issued pursuant to the other Transactions, in each case, that have not been or will not be validly waived or terminate prior to the Closing Date.
(viii) As of the date of this Subscription Agreement, the authorized capital shares of the Issuer consists of 185,830,000 Ordinary Shares, par value NIS 0.0001 per share (“Existing Ordinary Shares”), and (ii) 14,170,000 preferred shares, par value NIS 0.0001 per share (“Preferred Shares”). As of the date of this Subscription Agreement: (i) 18,684,354 Existing Ordinary Shares were issued and outstanding, (ii) 7,300,000 Preferred A Shares were issued and outstanding, (iii) 4,778,000 Preferred B Shares were issued and outstanding and (iv) 856,000 Preferred C Shares were issued and outstanding. Subject to obtaining the Required Approvals, as of the Closing, the Preferred Shares will be converted to Ordinary Shares.
(ix) Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 3(a) of the Shares in the manner contemplated by this Subscription Agreement, no registration under the Securities Act of 1933, as amended (and no prospectus approved under the “Securities Act”) Law is required for the offer and sale of the Shares Units by the Issuer to the InvestorSubscriber.
(fx) Neither the Issuer nor anyone any person acting on its behalf has, directly or indirectly, made any offers or sales of any securities of Issuer or solicited any offers to buy any securities of Issuer under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Units under the Securities Act or the Securities Law.
(xi) Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements.
(xii) Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Units and neither the Issuer, nor any person acting on its behalf has offered any of the Shares Units in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any similar state securities for sale laws.
(xiii) The Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or solicited make any offer to buy any of the same from, filing or otherwise approached or negotiated in respect thereof 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 Units), other than filings (A) with the PIPE Investors Commission of the Registration Statement, (B) required by applicable state or federal securities laws, (C) required in accordance with the Business Combination Agreement, (D) required by the Nasdaq Capital Market (“Nasdaq”) or other applicable stock exchange on which the Units are then listed (the “Stock Exchange”), including with respect to obtaining approval of the SPAC’s shareholders, (E) required in connection with the Required Approvals and other Institutional Accredited Investors, each (F) the failure of which to obtain would not be reasonably expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
(xiv) As of the Closing, the Issuer’s Ordinary Shares will be registered pursuant to Section 12(b) of the Exchange Act and will be listed for trading on the Stock Exchange. There is no suit, action, proceeding or investigation pending or to the knowledge of the Issuer, threatened against the Issuer by the Nasdaq or the Commission with respect to any intention by such entity to deregister the Ordinary Shares or prohibit or terminate the listing of Ordinary Shares on the Nasdaq.
(xv) Other than the Placement Agents, Issuer represents and warrants to the other parties hereto that no broker, finder or other financial consultant has been offered acted on its behalf in connection with this Subscription Agreement or the Shares at transactions contemplated hereby in such a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor way as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Actto create any liability on any other parties hereto.
Appears in 2 contracts
Samples: Unit Subscription Agreement (Leibovitch Yoav), Unit Subscription Agreement (Endurance Acquisition Corp.)
Issuer’s Representations, Warranties and Agreements. The Issuer hereby represents and warrants to the Investor as followsthat:
(a) The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a corporation in good standing under the laws of the Cayman IslandsDelaware General Corporate Law (“DGCL”). The Issuer has all corporate power (corporate or otherwise) and authority to own, lease and operate its properties and, subject to obtaining all required approvals necessary in connection with the performance of the Business Combination Agreement and the consummation of the Transactions (collectively, the “Required Approvals”), conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
(b) At the Closing, subject to the receipt As of the Subscription Amount Closing Date, the Acquired Shares will be duly authorized by the Issuer and, when issued and delivered to Subscriber against full payment for the Acquired Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of membersTransfer Agent, the Acquired Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paidnon-assessable, free and clear of any liens or and other encumbrances restrictions (other than those arising under this Subscription Agreement or applicable securities lawslaw) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time certificate of issuance) incorporation and bylaws or under the laws of the Cayman IslandsDGCL or otherwise.
(c) This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding agreement of Subscriber, is the valid and binding obligation of the InvestorIssuer, and is enforceable against it the Issuer in accordance with its terms, except as may be limited or otherwise affected by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally generally, and (ii) principles of equity, whether considered at law or equity.
(d) The issuance Subject to obtaining the Required Approvals, the execution, delivery and sale performance by the Issuer of the Shares and the this Subscription Agreement (including compliance by the Issuer with all of the provisions of this Subscription Agreement hereof), and the consummation issuance and sale by the Issuer of the transactions contemplated hereinAcquired Shares, 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 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 is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would be reasonably be expected likely to have have, individually or in the aggregate, a material adverse effect on the ability business, properties, financial condition, stockholders’ equity or results of operations of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Material Adverse Effect”), ) or materially affect the validity of the Acquired Shares or the legal authority of the Issuer to comply in all material respects with the Issuer’s obligations under this Subscription Agreement; (ii) result in any violation of the provisions of the organizational documents of the Issuer 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 be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect or materially affect the validity of the Acquired Shares or the legal authority of the Issuer to comply in all material respects with the Issuer’s obligations under this Subscription Agreement.
(e) Other than the Issuer’s Class B common stock, par value $0.0001 per share (the “Class B Shares”), there are no securities or instruments issued by or to which the Issuer is a party containing anti-dilution provisions that will be expected 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; provided, that the holders of the Class B Shares will waive any such anti-dilution provisions in connection with the Transactions.
(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 the Issuer is now 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.
(eg) 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 Acquired Shares), other than (i) filings with the Securities and Exchange Commission (the “Commission”), (ii) filings required by applicable state securities laws, (iii) filings required in accordance with Section 11(q) of this Subscription Agreement; (iv) filings required by the NYSE, including with respect to obtaining stockholder approval of the Transactions; (v) filings set forth in Section 4.03 of the Business Combination Agreement, and (vi) any consent, waiver, authorization, order, notice or filing the failure of which to obtain or make would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.
(h) As of the date of this Subscription Agreement, the authorized capital stock of the Issuer consists of (i) 5,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Shares”), (ii) 500,000,000 Class A Shares, and (iii) 50,000,000 Class B Shares. As of the date of this Subscription Agreement: (A) no Preferred Shares are issued and outstanding, (B) 75,000,000 Class A Shares are issued and outstanding, (C) 18,750,000 Class B Shares are issued and outstanding, (D) 8,500,000 warrants to purchase 8,500,000 Existing Class A Shares (the “Private Placement Warrants”) are outstanding and (E) 18,750,000 warrants to purchase 18,750,000 Existing Class A Shares (the “Public Warrants”) are outstanding. All issued and outstanding Class A Shares and Class B Shares have been duly authorized and validly issued, and are fully paid and non-assessable. Except as set forth above and pursuant to the Other Subscription Agreements, the Business Combination Agreement and the other agreements and arrangements referred to therein, as of the date hereof and immediately prior to Closing, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any Class A Shares, Class B Shares or other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (1) as set forth in the SEC Documents (as defined below) and (2) as contemplated by the Business Combination Agreement and the other agreements and arrangements referred to therein.
(i) The Issuer has not received any written communication from a governmental 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 be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.
(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 the NYSE under the symbol “GSAH”. There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by the NYSE or the Commission, respectively, to prohibit or terminate the listing of the Class A Shares on the NYSE or to deregister the Class A Shares under the Exchange Act. 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 InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 5 of the Shares in the manner contemplated by 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 Acquired Shares by the Issuer to the InvestorSubscriber.
(fl) Neither the Issuer nor anyone any person acting on its behalf has offered or sold the Acquired Shares by any form of general solicitation or any similar securities for sale general advertising, including, but not limited to, the following: (1) any advertisement, article, notice or solicited other communication published in any offer to buy any of the same fromnewspaper, magazine, or otherwise approached similar media or negotiated in respect thereof with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) broadcast over television or (7) under the Securities Act.radio;
Appears in 2 contracts
Samples: Assignment and Subscription Agreement (GSAM Holdings LLC), Assignment and Subscription Agreement (GSAM Holdings LLC)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1. The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a corporation in good standing under the laws of Delaware General Corporation Law (the Cayman Islands. The Issuer has all “DGCL”), with corporate power (corporate 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) At 2.2.2. The Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Closing, subject to the receipt of the Subscription Amount Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paidnon-assessable, free and clear of any all liens or other encumbrances restrictions (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) or under the laws of DGCL, or pursuant to any agreement or other instrument to which the Cayman IslandsIssuer is a party or by which it is otherwise bound.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the Investor, valid and binding obligation of the Issuer and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
(d) 2.2.4. The execution, delivery and performance by the Issuer of this Subscription Agreement, issuance and sale of the Shares and the compliance by the Issuer with all of the provisions of this Subscription Agreement and the consummation of the certain other transactions contemplated herein, 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 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 or any of its subsidiaries is 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 or to have a material adverse effect on the legal authority or ability of the Issuer to enter into and or timely perform its obligations under this Subscription Agreement (a an “Issuer Material Adverse Effect”), (ii) result in any breach or violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or bodyGovernmental Authority, domestic or foreign, having jurisdiction over the Issuer or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any Issuer security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration under the Securities Act of the Shares to be issued as contemplated hereby.
2.2.6. Neither the Issuer nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Shares and neither the Issuer nor any person acting on its behalf offered any of the Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of certain PIPE Securities. Neither Issuer nor any of its affiliates has entered into any side letter agreements or other agreements or understandings (eincluding written summaries of any oral understandings) with any Other Subscriber or any other investor in connection with such Other Subscriber’s or investor’s direct or indirect investment in the Issuer, other than (a) Other Subscription Agreements, (b) the Merger Agreement and (c) the Forward Purchase Agreements (as defined below). The Other Subscription Agreements reflect the same Per Share Price and terms and conditions that are not more advantageous to any Other Subscriber thereunder than the terms and condition hereunder (other than terms particular to the regulatory requirements of such Subscriber or its affiliates or related funds). The Other Subscription Agreements have not been amended in any material respect following the date of this Subscription Agreement.
2.2.8. The authorized capital stock of the Issuer as of the date of this Subscription Agreement consists of 121,000,000 shares of capital stock as follows: (a) 100,000,000 shares of Class A Common Stock, (b) 20,000,000 shares of Class B common stock, par value $0.0001 per share (“Authorized Class B Shares”); and (c) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Authorized Preferred Shares”). On October 23, 2020, the Issuer entered into Forward Purchase Agreements (the “Forward Purchase Agreements”) with certain affiliates of the Sponsor (the “Forward Purchasers”) pursuant to which the Forward Purchasers agreed to buy 5,000,000 shares of Class A Common Stock, plus an aggregate of 1,666,667 warrants to purchase one share of Class A Common Stock, for an aggregate purchase price of $50.0 million, subject to termination by mutual agreement. As of the date hereof, and as of immediately prior to the completion of the Transactions (prior to giving effect to (x) any redemption of any Class A Common Stock held by the Issuer’s public shareholders in connection with the consummation of the Transactions and (y) the issuance of the PIPE Securities): (i) no Preferred Shares are and will be issued and outstanding; (ii) 40,250,000 shares of Class A Common Stock are and will be issued and outstanding; (iii) 10,062,500 Authorized Class B Shares are and will be issued and outstanding; (iv) 6,700,000 warrants to purchase an aggregate of 6,700,000 shares of Class A Common Stock (the “Private Placement Warrants”) are and will be outstanding; and (v) 13,416,666.7 warrants to purchase an aggregate of 13,416,666.7 shares of Class A Common Stock (the “Public Warrants”) are and will be outstanding. All (i) issued and outstanding shares of Class A Common Stock and issued and outstanding Authorized Class B Shares have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding Private Placement Warrants and Public Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. Except as set forth above and pursuant to any Forward Purchase Agreements, Other Subscription Agreements and the Merger Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any shares of Class A Common Stock or Class B common stock, or any other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. Other than First Merger Sub and Second Merger Sub, the Issuer has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (A) as set forth in the SEC Documents (as defined below) and (B) as contemplated by the Merger Agreement and the other Transaction Agreements.
2.2.9. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (x) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to Subscriber contemplated by this Subscription Agreement and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local Governmental Authority is required on the Investorpart of the Issuer in connection with such offer and sale of Shares contemplated by this Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act and applicable state securities laws.
2.2.10. The Issuer has made available to Subscriber (fincluding via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents. Each of the financial statements (including, in each case, any notes thereto) contained in the SEC Documents was prepared in accordance with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the Commission) and each fairly presents, in all material respects, the financial position, results of operations and cash flows of the Issuer as at the respective dates thereof and for the respective periods indicated therein. None of the 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. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. There are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the SEC Documents.
2.2.11. There are no pending or, to the knowledge of the Issuer, threatened, Actions, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. There is no unsatisfied judgment or any open injunction binding upon the Issuer which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.12. Except for the Placement Agents, the Issuer has not paid, and is not obligated to pay, any brokerage, finder or other commission or similar fee in connection with the issuance and sale of the Shares.
2.2.13. The Issuer is in compliance with all applicable laws, except where such non-compliance would not, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. The Issuer has not received any written communication 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, individually or in the aggregate, be reasonably expected to have an Issuer Material Adverse Effect.
2.2.14. The issued and outstanding shares of the Issuer’s Class A Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the New York Stock Exchange (the “NYSE”) under the symbol “SPNV.” The Issuer is in compliance in all material respects with the rules of the NYSE and there is no Action pending or, to the knowledge of the Issuer, threatened against the Issuer by the NYSE or the Commission with respect to any intention by such entity to deregister the Issuer’s Class A Common Stock or terminate the listing of the Issuer’s common stock on the NYSE. None of the Issuer or its affiliates has taken any action in an attempt to terminate the registration of the Issuer’s Class A Common Stock under the Exchange Act except as contemplated by the Merger Agreement. The Issuer has not received any notice from the NYSE or the Commission regarding the revocation of such listing or otherwise regarding the delisting of the Issuer’s Class A Common Stock from the NYSE or the Commission.
2.2.15. 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 Shares or (ii) the shares of Class A Common Stock to be issued pursuant to any Other Subscription Agreement.
2.2.16. Neither the Issuer nor anyone acting on any of its behalf has offered subsidiaries is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.2.17. Issuer acknowledges and agrees that, notwithstanding anything herein to the contrary, the Shares may be pledged by Subscriber in connection with a bona fide margin agreement, which shall not be deemed to be a transfer, sale or any similar securities for sale to, or solicited any offer to buy any assignment of the same fromShares hereunder, and Issuer effecting a pledge of Shares shall not be required to provide Issuer with any notice thereof or otherwise approached or negotiated in respect thereof with, make any person other than the PIPE Investors delivery to Issuer pursuant to this Subscription Agreement. Issuer hereby agrees to execute and other Institutional Accredited Investors, each deliver such documentation as a pledgee of which has been offered the Shares at may reasonably request in connection with a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under pledge of the Securities ActShares to such pledgee by Subscriber.
Appears in 1 contract
Samples: Subscription Agreement (Supernova Partners Acquisition Company, Inc.)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Securities, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing Date, except as disclosed in the SEC Documents (as defined below), as follows:
(a) 2.2.1. The Issuer is an exempted company has been duly incorporated, is validly existing and as a corporation in good standing under the laws of the Cayman Islands. The Issuer jurisdiction of its incorporation, has all the corporate power (corporate or otherwise) and authority to own, own or lease its property and operate its properties and to conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2. The Subscribed Securities will be duly authorized and, when issued and delivered to Subscriber against full payment for the Subscribed Securities, will be free and clear of any liens or other restrictions (bother than arising under applicable securities laws) At the Closing, subject to the receipt of the Subscription Amount in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares Subscribed Securities will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) constitutive agreements or the laws of the Cayman Islandsapplicable law.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the Investorvalid and binding obligation of the Issuer, and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4. The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Subscribed Securities and the consummation of the other 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is 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, taken as a whole or materially and adversely affects the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a an “Issuer Material Adverse Effect”), (ii) result in any material violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Securities under the Securities Act.
2.2.6. Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Securities and neither the Issuer, nor any person acting on its behalf has offered any of the Subscribed Securities in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. [Reserved].
2.2.8. As of the date of this Subscription Agreement, the authorized share capital of the Issuer consists of 450,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, $0.001 par value per share (e) the “Preferred Stock”). The shares of Common Stock outstanding have been duly authorized and are validly issued, fully paid and non assessable. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer. 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 the Subscribed Securities that have not been or will not be validly waived on or prior to the Closing.
2.2.9. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (i) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares Subscribed Securities by the Issuer to Subscriber and (ii) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act and applicable state securities laws.
(f) Neither 2.2.10. As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened, suits, claims, actions, or proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer nor anyone acting on its behalf has offered Material Adverse Effect. As of the Shares date hereof, there is no unsatisfied judgment or any similar securities for sale open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.11. The Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or solicited make any offer 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 Subscribed Securities), other than (i) filings with the Commission, (ii) filings required by applicable state securities laws, (iii) those required by The Nasdaq Stock Market LLC (“Nasdaq”) or another applicable stock exchange, and (iv) filings, the failure of which to buy obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.12. The Issuer made available to Subscriber (including via the Commission’s EXXXX system) a true, correct and complete copy of each form, report, statement, schedule, proxy, and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder and applicable to the SEC Documents. As of their respective dates, all SEC Documents required to be filed by the Issuer with the Commission prior to the date hereof complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder. None of the 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. The Issuer has timely filed each report, statement, and schedule that the Issuer was required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the same fromSEC Documents.
2.2.13. No broker, finder or otherwise approached other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or negotiated the transactions contemplated hereby in respect thereof withsuch a way as to create any liability on Subscriber.
2.2.14. The Issuer is not, any person other than and immediately after receipt of payment for the PIPE Investors and other Institutional Accredited InvestorsSubscribed Securities will not be, each of which has been offered the Shares at a private sale for investment. required to register as an “Institutional Accredited Investorinvestment company” means an institutional accredited investor as such term is defined in Rule 501(a)(1)the Investment Company Act of 1940, (2), (3) or (7) under the Securities Actas amended.
Appears in 1 contract
Samples: Subscription Agreement (Accelerate Diagnostics, Inc)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing Date, as follows:
(a) 2.2.1. The Issuer is an exempted company has been duly incorporated, is validly existing and as a corporation in good standing under the laws of the Cayman Islands. The Issuer jurisdiction of its incorporation, has all the corporate power (corporate or otherwise) and authority to own, own or lease its property and operate its properties and to conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2. The Subscribed Shares will be duly authorized and, when issued and delivered to Subscriber against full payment for the Subscribed Shares, will be free and clear of any liens or other restrictions (bother than arising under applicable securities laws) At the Closing, subject to the receipt of the Subscription Amount in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Subscribed Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) constitutive agreements or the laws of the Cayman Islandsapplicable law.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the Investorvalid and binding obligation of the Issuer, and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4. The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Subscribed Shares and the consummation of the other 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is 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, taken as a whole or materially and adversely affects the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a an “Issuer Material Adverse Effect”), (ii) result in any material violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Shares under the Securities Act.
2.2.6. Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Shares and neither the Issuer, nor any person acting on its behalf has offered any of the Subscribed Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of an aggregate of 278,514 shares of Common Stock for an aggregate purchase price of $320,291.10 (eincluding the Subscribed Shares purchased and sold under this Subscription Agreement ).
2.2.8. As of the date of this Subscription Agreement, the authorized share capital of the Issuer consists of 200,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, $0.001 par value per share (the “Preferred Stock”). The shares of Common Stock outstanding have been duly authorized and are validly issued, fully paid and non‑assessable. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer. 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 Subscribed 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.
2.2.9. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (i) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Subscribed Shares by the Issuer to Subscriber and (ii) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act and applicable state securities laws.
(f) Neither 2.2.10. As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened, suits, claims, actions, or proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer nor anyone acting on its behalf has offered Material Adverse Effect. As of the Shares date hereof, there is no unsatisfied judgment or any similar securities for sale open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.11. The Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or solicited make any offer 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 Subscribed Shares), other than (i) filings with the Commission, (ii) filings required by applicable state securities laws, (iii) those required by The Nasdaq Stock Market LLC (“Nasdaq”) or another applicable stock exchange, and (iv) filings, the failure of which to buy obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.12. The Issuer made available to Subscriber (including via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder and applicable to the SEC Documents. As of their respective dates, all SEC Documents required to be filed by the Issuer with the Commission prior to the date hereof complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder. None of the 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. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the same fromSEC Documents.
2.2.13. No broker, finder or otherwise approached other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or negotiated the transactions contemplated hereby in respect thereof withsuch a way as to create any liability on Subscriber.
2.2.14. The Issuer is not, any person other than and immediately after receipt of payment for the PIPE Investors and other Institutional Accredited InvestorsSubscribed Shares will not be, each of which has been offered the Shares at a private sale for investment. required to register as an “Institutional Accredited Investorinvestment company” means an institutional accredited investor as such term is defined in Rule 501(a)(1)the Investment Company Act of 1940, (2), (3) or (7) under the Securities Actas amended.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce the Investor to purchase the Investment Securities, the Issuer hereby represents and warrants to the Investor and agrees with the Investor as follows:
(a) 3.2.1 The Issuer is an exempted a company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all , with corporate power (corporate 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 Investment Agreement.
(b) At 3.2.2 The issue of the ClosingInvestment Securities has been duly authorized and, subject when issued to the receipt of Investor against full payment for the Subscription Amount Investment Securities in accordance with the terms of this Subscription Agreement Investment Agreement, the Warrant Instrument and registration on the Issuer’s amended and restated memorandum and articles of association of the Issuer (as amended from time to time) and following the updates to the register of membersmembers of the Issuer in respect of such Investment Securities (as applicable) in accordance with the Companies Act (As Revised) of the Cayman Islands, the Shares Investment Securities will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paidnon-assessable (in respect of the Shares), free and clear of any all liens or other encumbrances restrictions (other than those arising under this Investment Agreement, the Warrant Instrument or any applicable securities laws) and will not have been issued in violation of of, or subject to any preemptive or similar rights created under under, the Issuer’s organizational documents amended and restated memorandum and articles of association (as in effect at such amended from time of issuanceto time) or under the laws Companies Act (As Revised) of the Cayman Islands.
(c) 3.2.3 This Subscription Investment Agreement has been duly authorized and validly executed and delivered by the Issuer and, assuming that this Investment Agreement has been duly authorized, executed and delivered by the Issuer andInvestor, assuming that this Subscription Agreement constitutes shall constitute the valid and binding obligation of the Investor, Issuer and is enforceable against it 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 generally, and (ii) principles of equity, whether considered at law or equityequity (including concepts of materiality, reasonableness, good faith and fair dealing with respect to those jurisdictions that recognize such concepts).
3.2.4 The execution, delivery and performance of this Investment Agreement by the Issuer (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions of this Subscription Agreement hereof) and the consummation issuance and sale of the transactions contemplated herein, Investment Securities do not and will not (i) conflict with with, or result in a breach or violation of 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 upon, any of the property or assets of the Issuer or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries, as applicable, is a party or by which the Issuer or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of the Issuer or any of its subsidiaries, as applicable, is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries, as applicable, or (iii) result in any violation of any law, statute or any judgment, order, rule rule, regulation or regulation other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its subsidiaries, as applicable, or any of its properties that that, in the case of clauses (i) and (iii), would reasonably be expected expected, individually or in the aggregate, to have a an Issuer Material Adverse Effect.
. For purposes of this Investment Agreement, an “Issuer Material Adverse Effect” means an event, change, delay, development, occurrence, condition or effect with respect to the Issuer that has a material adverse effect on (ex) Assuming the accuracy assets, business, prospects, shareholders’ equity, results of operation or financial operations of the Investor’s representations Issuer and warranties set forth in Section 4.2its subsidiaries, in connection with taken as a whole, (y) the offer, sale and delivery validity of the Shares in Investment Securities, or (z) the manner contemplated by this Subscription Agreement, no registration under the Securities Act legal authority of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to the Investor.
(f) Neither enter into and timely perform its obligations under this Investment Agreement; provided, however, that no Issuer Material Adverse Effect shall be deemed to have occurred if such event, change, delay, development, occurrence, condition or effect with respect to the Issuer nor anyone acting on its behalf has offered (i) was known by the Shares Rights Holder as at the Execution Date to have already occurred or any similar securities for sale toto be going to occur, or solicited (ii) was directly caused by any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3act(s) or (7omission(s) under by the Securities ActRights Holder, which were or should have been known by the Rights Holder to be likely to cause such material adverse effect to the Issuer.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, the Issuer hereby represents represents, warrants and warrants covenants to Subscriber and the Investor Placement Agents and agrees with Subscriber and the Placement Agents as follows:
(a) 2.2.1 The Issuer is has been duly incorporated as an exempted company duly incorporated, with limited liability and is validly existing and in good standing under the laws of the Cayman Islands, with 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. The As of the Closing, after giving effect to the Domestication, the Issuer has all will be duly organized and validly existing in good standing under the laws of Delaware, with power (corporate 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) At 2.2.2 The Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Closing, subject to the receipt of the Subscription Amount Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paidnon-assessable, free and clear of any all liens or other encumbrances restrictions (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time amended and restated certificate of issuance) incorporation, bylaws or the laws of the Cayman Islandsunder Delaware law.
(c) 2.2.3 This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid due authorization, execution and binding obligation delivery of the Investorsame by Subscriber, is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
(d) 2.2.4 The issuance execution, delivery and sale of the Shares and the compliance performance by the Issuer with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein, 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 pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability business, financial condition stockholders’ equity or results of operations of Issuer and its subsidiaries, taken as a whole, or affect the validity of the Shares or prevent or materially impair the legal authority of the Issuer or its ability to enter into and timely perform its obligations under 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 2.2.5 As of the Investor’s representations date hereof, the authorized share capital of the Issuer consists of: (i) 200,000,000 Class A ordinary shares, par value $0.001 per share (“Existing Class A Shares”); (ii) 20,000,000 Class B ordinary shares, par value $0.001 per share (“Existing Class B Shares”); and warranties (iii) 1,000,000 shares of preferred stock, par value $0.001 per share (“Preferred Shares”). As of the date hereof: (a) no Preferred Shares are issued and outstanding; (b) 28,960,000 Existing Class A Shares are issued and outstanding; and (c) 7,000,000 Existing Class B Shares are issued and outstanding. All issued and outstanding Existing Class A Shares and Existing Class B Shares have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights. Except for the foregoing and pursuant to the Other Subscription Agreements, the Transaction Agreement and the other agreements and arrangements referred to therein or in the SEC Documents, as of the date hereof, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from Issuer any Existing Class A Shares, Existing Class B Shares or other equity interests in Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, Issuer has no subsidiaries, other than Merger Sub, and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are, as of the date hereof, no stockholder agreements, voting trusts or other agreements or understandings to which Issuer is a party or by which it is bound relating to the voting of any securities of Issuer, other than (1) as set forth in Section 4.2, in connection with the offer, sale SEC Documents and delivery (2) as contemplated by the Transaction Agreement. 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 the Shares in Shares, except that have not been or will not be validly waived on or prior to the manner contemplated by this Subscription Agreement, no Closing Date.
2.2.6 No registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to Subscriber. The Shares (i) were not offered by a form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the InvestorSecurities Act or any state securities laws.
2.2.7 The Issuer has made available to Subscriber (fincluding via the Commission’s XXXXX system) Neither a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer nor anyone acting with the Commission (the “SEC Documents”). Except as disclosed in the SEC Documents (including the Current Report on Form 8-K filed on November 30, 2021), none of the SEC Documents filed under the Securities Act or the Exchange Act, contained, 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 required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, that the Issuer makes no such representation or warranty with respect to any information relating to the Company or any of its behalf Affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has offered timely filed each form, report, statement, schedule, prospectus, proxy, registration statement, and other document that the Issuer was required to file with the Commission since its inception . There are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the SEC Documents.
2.2.8 Other than the Other Subscription Agreements, the Merger Agreement and any other agreement contemplated by the Merger Agreement and except with respect to SoftBank Group Corp. or its Affiliates, Issuer has not entered into any side letter or similar agreement with any Other Subscriber or other investor in connection with such Other Subscriber’s or other investor’s direct or indirect investment in Issuer. The Other Subscription Agreements reflect the same Per Share Price as set forth in this Subscription Agreement and do not contain terms or conditions that are more advantageous to such Other Subscriber than the Subscriber hereunder (other than (i) any such agreement with SoftBank Group Corp. or its Affiliates, (ii) terms particular to the legal or regulatory requirements of such Other Subscriber or its Affiliates, related persons or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of the related Shares or (iii) such terms which are administrative in nature).
2.2.9 The issued and outstanding Existing Class A Shares are registered pursuant to Section 12(b) of the Exchange Act, and the Existing Class A Shares are, and the Shares will be, listed for trading on Nasdaq. There is no suit, action, proceeding or investigation pending or, to the knowledge of Issuer, threatened against Issuer by Nasdaq or the Commission, respectively, to deregister the Existing Class A Shares or to prohibit or terminate the listing of the Existing Class A Shares, other than as contemplated by the Domestication. Issuer has taken no action that is designed to terminate the listing of the Existing Class A Shares on Nasdaq or the registration of the Existing Class A Shares under the Exchange Act, other than as contemplated by the Domestication. At or prior to Closing, the Shares shall have been approved for listing on Nasdaq, subject to official notice of issuance.
2.2.10 Except for such matters as have not had or would not be reasonably expected to have, individually or in the aggregate, an Issuer Material Adverse Effect, there is no (i) investigation, action, suit, claim or other proceeding, in each case by or before any governmental authority pending, or, to the knowledge of Issuer, threatened against Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against Issuer.
2.2.11 Other than Placement Agents (as defined herein), Issuer has not entered into any agreement or arrangement entitling any agent, broker, investment banker, financial advisor or other person to any broker’s or finder’s fee or any other commission or similar securities fee in connection with the transactions contemplated by this Subscription Agreement for sale which the Subscriber could become liable.
2.2.12 Issuer is not, and immediately after receipt of payment for the Shares, will not be (i), an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”), or a company “controlled” by an “investment company” within the meaning of the Investment Company Act, and as such subject to registration as an “investment company” under the Investment Company Act or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act.
2.2.13 Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or solicited make any offer to buy any of the same from, filing or otherwise approached or negotiated in respect thereof 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 Issuer of this Subscription Agreement (including, without limitation, the issuance of the Shares), other than (i) filings with the PIPE Investors Commission, (ii) filings required by applicable state securities laws, (iii) filings required in accordance with Section 7 of this Subscription Agreement; (iv) those required by Nasdaq, including with respect to obtaining approval of Issuer’s stockholders; and other Institutional Accredited Investors(vi) any filing, each the failure of which to obtain would not be reasonably expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.14 Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer Material Adverse Effect. Issuer has been offered not received any written communication from a governmental entity that alleges that 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, individually or in the aggregate, be reasonably expected to have an Issuer Material Adverse Effect.
2.2.15 The Issuer acknowledges and agrees that, notwithstanding anything herein to the contrary, the Shares at may be pledged by the Subscriber in connection with a private bona fide margin agreement, which shall not be deemed to be a transfer, sale for investment. “Institutional Accredited Investor” means or assignment of the Shares hereunder, and the Subscriber effecting a pledge of Shares shall not be required to provide the Issuer with any notice thereof or otherwise make any delivery to the Issuer pursuant to this Subscription Agreement; provided that such pledge shall be (i) pursuant to an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) available exemption from the registration requirements of the Securities Act or (7ii) pursuant to, and in accordance with, a registration statement that is effective under the Securities ActAct at the time of such pledge.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing Date, as follows:
(a) 2.2.1. The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has its jurisdiction of incorporation or formation, with all requisite power (corporate 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. As of the Closing Date, the Issuer will be duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(b) At 2.2.2. The Subscribed Shares will be duly authorized and, when issued and delivered to Subscriber against full payment for the ClosingSubscribed Shares, subject to the receipt will be free and clear of the Subscription Amount any liens or other restrictions whatsoever in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Subscribed Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) constitutive agreements or the laws of the Cayman Islandsapplicable law.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the InvestorSubscriber, is the valid and binding obligation of the Issuer, and is enforceable against it Issuer in accordance with its terms, except as may be limited or otherwise affected by (ij) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (iik) principles of equity, whether considered at law or equity.
2.2.4. The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Subscribed Shares and the consummation of the other transactions contemplated herein, including the Transactions, will not (il) 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is 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 or Springbig or their respective subsidiaries individually or taken as a whole and including the combined company after giving effect to the Transactions, or materially affects the validity or enforceability of the Subscribed Shares or the legal authority or other ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a collectively, an “Issuer Material Adverse Effect”), (iim) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries or (iiin) 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Shares under the Securities Act.
2.2.6. Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Shares and neither the Issuer, nor any person acting on its behalf has offered any of the Subscribed Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. As of the date of this Subscription Agreement and as of immediately prior to the Transactions, the authorized share capital of the Issuer consists of 200,000,000 Class A ordinary shares, 20,000,000 Class B ordinary shares and 1,000,000 preference shares, $0.0001 par value each. All issued and outstanding ordinary shares of the Issuer have been duly authorized and validly issued, are fully paid, non-assessable and are not subject to preemptive or similar rights. Except as set forth above and pursuant to the Other Subscription Agreements and the Business Combination Agreement, there are no outstanding, and between the date hereof and the Closing, the Issuer will not issue, sell or cause to be outstanding any (a) shares, equity interests or voting securities of the Issuer, (b) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, (c) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to subscribe for, purchase or acquire from any individual, entity or other person, and no obligation of the Issuer to issue, any ordinary shares of the Issuer, or any other equity interests or voting securities in the Issuer or any securities convertible into or exchangeable or exercisable for such shares or other equity interests or voting securities, (d) equity equivalents or other similar rights of or with respect to the Issuer, or (e) obligations of the Issuer to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, options, equity equivalents, interests or rights. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than as contemplated by the Business Combination Agreement and the Ancillary Agreements (as defined in the Business Combination Agreement). 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 Subscribed 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 of the Transactions.
2.2.8. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (o) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Subscribed Shares by the Issuer to Subscriber and (p) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act and applicable state securities laws and filings required to consummate the Transactions as provided under the Business Combination Agreement.
(f) Neither 2.2.9. There are no pending or, to the knowledge of the Issuer, threatened, suits, claims, actions, or proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. There is no unsatisfied judgment or any open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.10. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to be material. The Issuer has not received any written communication from a governmental entity, exchange or self regulatory organization that alleges that the Issuer nor anyone acting on its behalf has offered 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, individually or in the Shares aggregate, be reasonably expected to be material.
2.2.11. The Issuer is not required to obtain any consent, waiver, authorization or order of, give any similar securities for sale notice to, or solicited make any offer 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 Subscribed Shares), other than (q) filings with the Commission, (r) filings required by applicable state securities laws, (s) filings required in accordance with Section 4, (t) those required by the New York Stock Exchange (the “NYSE”) or Nasdaq, and (u) filings, the failure of which to buy obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.12. At the Closing, the Issuer will be classified as a domestic corporation for U.S. federal income tax purposes.
2.2.13. The Issuer made available to Subscriber (including via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder and applicable to the SEC Documents. As of their respective dates, all SEC Documents required to be filed by the Issuer with the Commission prior to the date hereof complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder. None of the 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; provided that the Issuer makes no such representation or warranty with respect to the registration statement on Form S-4 to be filed by the Issuer with respect to the Transactions or any other information relating to Springbig or any of its affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. There are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the same fromSEC Documents.
2.2.14. No broker, finder or otherwise approached other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or negotiated the transactions contemplated hereby in respect thereof withsuch a way as to create any liability on Subscriber.
2.2.15. The Issuer is not, any person other than and immediately after receipt of payment for the PIPE Investors and other Institutional Accredited InvestorsSubscribed Shares will not be, each an “investment company” within the meaning of which has been offered the Shares at a private sale for investmentInvestment Company Act of 1940, as amended.
2.2.16. “Institutional Accredited Investor” means an institutional accredited investor The Other Subscription Agreements entered into by Issuer as defined in Rule 501(a)(1), (2), (3) or (7) under of the Securities Actdate hereof have substantially similar terms as this Subscription Agreement.
Appears in 1 contract
Samples: Subscription Agreement (Tuatara Capital Acquisition Corp)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares and to induce the Sponsor to transfer the Transferring Warrants to the Subscriber, the Issuer hereby represents and warrants to the Investor Subscriber and Sponsor and agrees with Subscriber as follows:
(a) The Issuer is an exempted a business company duly incorporated, validly existing and in good standing under the laws of the Cayman British Virgin Islands. The Issuer has all power (corporate 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) At the Closing, subject to the receipt of the Subscription Amount Purchase Price in accordance with the terms of this Subscription Agreement and registration on of the Shares by the Issuer’s transfer agent (the “Transfer Agent”) in the Issuer’s register of members, the Shares will be duly authorized, validly issued and allotted and fully paidpaid and non-assessable, free and clear of any liens or other encumbrances restrictions (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents articles of association (as in effect at such time of issuance) or under the laws of the Cayman IslandsBVI Business Companies Act, 2004 (as amended).
(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 obligation of Subscriber, is the Investor, valid and binding obligation of the Issuer and is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
(d) The issuance execution, delivery and sale performance of the Shares and the this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of this Subscription Agreement the Shares and the consummation of the certain other transactions contemplated herein, 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 pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under 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) As of the date of this Subscription Agreement, the issued shares of the Issuer consists of 1 fully paid ordinary share with no par value, and such share is duly authorized and validly issued, and is not subject to preemptive rights or encumbrances. As of the date of this Subscription Agreement, and immediately prior to Closing, except as set forth above and pursuant to the Other Subscription Agreements, the Business Combination Agreement and the transactions contemplated thereby, there are no outstanding: (e1) shares, equity interests or voting securities of the Issuer, (2) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, or (3) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to acquire from any individual, entity or other person, and no obligation of the Issuer to issue, any shares or other equity interests or voting securities of the Issuer (collectively, the “Equity Interests”) or securities convertible into or exchangeable or exercisable for Equity Interests. As of the date of this Subscription Agreement and at Closing, there are no stockholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than as contemplated by the Business Combination Agreement and the transactions contemplated thereby.
f) Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.23.1 of this Subscription Agreement, in connection with the offer, sale and delivery of the Shares in the manner contemplated by 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 Shares by the Issuer to Subscriber. The Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the InvestorSecurities Act, or directed selling efforts (within the meaning of Regulation S under the Securities Act) and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
g) The Issuer has provided Subscriber an opportunity to ask questions regarding the Issuer and made available to Subscriber all the information reasonably available to the Issuer that Subscriber has reasonably requested to make an investment decision with respect to the Shares.
h) The Issuer has made available to Subscriber (fincluding via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “Issuer SEC Documents”) which Issuer SEC Documents, as of their respective filing dates (or, in the case of the Registration Statement, when declared effective), complied (or, in the case of the Registration Statement, will comply), in all material respects with the requirements of the Exchange Act applicable to the Issuer SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable to the Issuer 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 (or, in the case of the Registration Statement, when declared effective), 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.
i) Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on either Section 4(a)(2) of the Securities Act or Regulation S under the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares under the Securities Act.
j) Neither the Issuer, the Company nor Kismet has entered into any subscription agreement, side letter or similar agreement with any Other Subscriber or any other investor or potential investor in connection with such Other Subscriber’s or investor’s or potential investor’s direct or indirect investment in the Issuer, the Company or Kismet other than the Business Combination Agreement and the Other Subscription Agreements. The Other Subscription Agreements have the same Purchase Price as this Subscription Agreement and do not include terms or conditions that are more advantageous or favorable to any other investor compared to the Subscriber under this Subscription Agreement, other than with respect to certain settlement arrangements owing to regulatory constraints, and have not been amended in any material respect following the date of this Subscription Agreement.
k) Other than in connection with employee stock options, other benefit plan or other forms of employee compensation, none of the Issuer nor any of its affiliates has offered Issuer Shares or any similar securities during the six months prior to the date hereof to anyone other than in connection with the Transactions and to Subscriber and other investors in connection with the Other Subscription Agreements. Other than the foregoing, the Issuer has no intention to offer Issuer Shares or any similar security during the six months from the date hereof other than in connection with the Transactions, in connection with duly approved acquisitions or in connection with employee stock options, other benefit plan or other forms of employee compensation.
l) Except as disclosed in the Issuer SEC Documents and except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, an Issuer Material Adverse Effect, there is no (i) action, suit, claim or other proceeding, in each case by or before any governmental authority pending, or, to the knowledge of the Issuer, threatened against the Issuer or the Company, or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer or the Company.
m) Except as disclosed in the Issuer SEC Documents, neither the Issuer, nor the Company has received any written communication from a governmental authority that alleges that the Issuer or the Company 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 be reasonably expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
n) The Issuer is not required to obtain any material 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 Shares pursuant to this Subscription Agreement, other than (i) filings with the Commission, (ii) filings required by applicable state or federal securities laws, (iii) the filings required in accordance with Section 7.20 of this Subscription Agreement; (iv) those required by the Nasdaq Stock Market LLC (“Nasdaq”), and (v) those required to consummate the Transactions as provided under the Business Combination Agreement.
o) Upon consummation of the Transactions, the Issuer Shares registered on the Registration Statement will be registered pursuant to Section 12(b) of the Exchange Act and will be listed for trading on the Nasdaq, and the Shares will be approved for listing on Nasdaq, subject to official notice of issuance.
p) Neither the Issuer nor anyone any person acting on its behalf has offered is under any obligation to pay any broker’s fee or finder’s fee or commission in connection with the sale of the Shares.
q) The Issuer is not, and immediately after receipt of payment for the Shares of the Issuer will not be, subject to registration as an “investment company” under the Investment Company Act of 1940, as amended.
r) Issuer is not (i) a person or entity named on any OFAC Lists; (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Crimea, or any similar securities for sale toother country or territory embargoed or subject to substantial trade restrictions by the United States, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at (iv) a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor Designated National as defined in Rule 501(a)(1)the Cuban Assets Control Regulations, (2), (331 C.F.R. Part 515.
s) or (7) under The Issuer has not executed this Agreement in the Securities ActRepublic of Cyprus.
Appears in 1 contract
Samples: Subscription Agreement (Kismet Acquisition One Corp)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing Date, as follows:
(a) 2.2.1. The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has its jurisdiction of incorporation or formation, with all requisite power (corporate 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. As of the Closing Date, the Issuer will be duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(b) At 2.2.2. The Subscribed Shares will be duly authorized and, when issued and delivered to Subscriber against full payment for the ClosingSubscribed Shares, subject to the receipt will be free and clear of the Subscription Amount any liens or other restrictions whatsoever in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Subscribed Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) constitutive agreements or the laws of the Cayman Islandsapplicable law.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the InvestorSubscriber, is the valid and binding obligation of the Issuer, and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4. The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Subscribed Shares and the consummation of the other transactions contemplated herein, including the Transactions, 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is 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 or FiscalNote or their respective subsidiaries individually or taken as a whole and including the combined company after giving effect to the Transactions, or materially affects the validity or enforceability of the Subscribed Shares or the legal authority or other ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a collectively, an “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Shares under the Securities Act.
2.2.6. Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Shares and neither the Issuer, nor any person acting on its behalf has offered any of the Subscribed Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of an aggregate of 10,000,000 Common Shares for an aggregate purchase price of $100,000,000 (including the Subscribed Shares purchased and sold under this Subscription Agreement). There are no Other Subscription Agreements, side letter agreements or other agreements or understandings (including written summaries of any oral understandings) with any Other Subscriber or any other investor or potential investor with respect to the purchase of equity securities of the Issuer (other than as described in the last sentence of this Section 2.2.7 and pursuant to the Merger Agreement) which include terms and conditions (economic or otherwise) that are materially more advantageous to any such Other Subscriber, investor or potential investor (as compared to Subscriber). The Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement. This Section 2.2.7 shall not apply to any purchase of any equity securities of the Issuer by the sponsor of the Issuer, or any of its affiliates.
2.2.8. As of the date of this Subscription Agreement and as of immediately prior to the Transactions, the authorized share capital of the Issuer consists of 180,000,000 Class A Ordinary Shares, 20,000,000 DSAC Class B Ordinary Shares and 1,000,000 preference shares, $0.0001 par value each. All issued and outstanding ordinary shares of the Issuer have been duly authorized and validly issued, are fully paid, non-assessable and are not subject to preemptive or similar rights. Except as set forth above and pursuant to the Other Subscription Agreements and the Merger Agreement, there are no outstanding, and between the date hereof and the Closing, the Issuer will not issue, sell or cause to be outstanding any (a) shares, equity interests or voting securities of the Issuer, (b) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, (c) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to subscribe for, purchase or acquire from any individual, entity or other person, and no obligation of the Issuer to issue, any ordinary shares of the Issuer, or any other equity interests or voting securities in the Issuer or any securities convertible into or exchangeable or exercisable for such shares or other equity interests or voting securities, (d) equity equivalents or other similar rights of or with respect to the Issuer, or (e) obligations of the Issuer to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, options, equity equivalents, interests or rights. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than as contemplated by the Merger Agreement and the Transaction Agreements (as defined in the Merger Agreement).
2.2.9. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (i) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Subscribed Shares by the Issuer to Subscriber and (ii) no consent, approval, order, authorization of, or registration, qualification, designation, declaration or filing with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the Investorexecution, delivery and performance by the Issuer of this Subscription Agreement (including, without limitation, the issuance of the Subscribed Shares), except for those applicable filings (a) with the Commission, (b) required by applicable state securities laws, (c) required in accordance with Section 4, (d) required by the New York Stock Exchange (the “NYSE”) or NASDAQ Stock Exchange (“NASDAQ”), and (e) the failure of which to obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
(f) Neither 2.2.10. There are no pending or, to the knowledge of the Issuer, threatened, suits, claims, actions, or proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. There is no unsatisfied judgment or any open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.11. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer Material Adverse Effect. The Issuer has not received any written communication from a governmental entity, exchange or self regulatory organization that alleges that the Issuer nor anyone acting 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, individually or in the aggregate, be reasonably expected to have an Issuer Material Adverse Effect.
2.2.12. The Issuer made available to Subscriber (including via the Commission’s EXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder and applicable to the SEC Documents. As of their respective dates, all SEC Documents required to be filed by the Issuer with the Commission prior to the date hereof complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder. None of the 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; provided that the Issuer makes no such representation or warranty with respect to the registration statement on its behalf has offered Form S-4 to be filed by the Shares Issuer with respect to the Transactions or any similar securities for sale toother information relating to FiscalNote or any of its affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. There are no material outstanding or solicited any offer unresolved comments in comment letters from the Commission staff with respect to buy any of the same fromSEC Documents.
2.2.13. No broker, finder or otherwise approached other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or negotiated the transactions contemplated hereby in respect thereof withsuch a way as to create any liability on Subscriber.
2.2.14. The Issuer is not, any person other than and immediately after receipt of payment for the PIPE Investors and other Institutional Accredited InvestorsSubscribed Shares will not be, each an “investment company” within the meaning of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor Investment Company Act of 1940, as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Actamended.
Appears in 1 contract
Samples: Subscription Agreement (Duddell Street Acquisition Corp.)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to subscribe for the Securities, the Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Issuer is an exempted a company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all Ireland, with corporate power (corporate 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) At the Closing2.2.2 The Securities are duly authorized and, subject to the receipt of the Subscription Amount when issued and paid for in accordance with the terms applicable Transaction Document and the memorandum and articles of this Subscription Agreement association of the Issuer (as amended from time to time) and registration on following the Issuer’s updates to the register of membersmembers of the Issuer in respect of such Securities in accordance with the Companies Act 2014, the Shares will be duly authorizedand validly issued, validly issued fully paid and allotted and fully paidnon-assessable, free and clear of any all liens or other encumbrances restrictions (other than those arising under the Transaction Documents or any applicable securities laws) and will not have been issued in violation of of, or subject to any preemptive or similar rights created under under, the Issuer’s organizational documents memorandum and articles of association (as in effect at such amended from time of issuanceto time) or under the laws Companies Act 2014. The Warrant Shares, when issued in accordance with the terms of the Cayman IslandsTransaction Documents, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Issuer other than restrictions on transfer provided for in the Transaction Documents.
(c) 2.2.3 This Subscription Agreement has been duly authorized, authorized and validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes has been duly authorized, executed and delivered by Subscriber and Issuer, shall constitute the valid and binding obligation of the Investor, Issuer and is enforceable against it 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 generally, and (ii) principles of equity, whether considered at law or equityequity (including concepts of materiality, reasonableness, good faith and fair dealing with respect to those jurisdictions that recognize such concepts).
2.2.4 The execution, delivery and performance of this Subscription Agreement by the Issuer (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof) and the issuance and sale of this Subscription Agreement the Shares or the Warrant Shares (as the case may be) and the consummation of the certain other transactions contemplated herein, do not and will not (i) conflict with with, or result in a breach or violation of 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 upon, any of the property or assets of the Issuer or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries, as applicable, is a party or by which the Issuer or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of the Issuer or any of its subsidiaries, as applicable, is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries, as applicable, or (iii) result in any violation of any law, statute or any judgment, order, rule rule, regulation or regulation other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its subsidiaries, as applicable, or any of its properties that that, in the case of clauses (i) and (iii), would reasonably be expected expected, individually or in the aggregate, to have a an Issuer Material Adverse Effect.
(e) Assuming the accuracy . For purposes of the Investor’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery of the Shares in the manner contemplated by this Subscription Agreement, no registration under an “Issuer Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to the Securities Act Issuer that has a material adverse effect on (x) the assets, business, stockholders’ or shareholders’ equity, results of 1933operation or financial operations of the Issuer and its subsidiaries, taken as amended a whole, (y) the “Securities Act”) is required for the offer and sale validity of the Shares by or the Warrant Shares (as the case may be), or (z) the legal authority of the Issuer to the Investorenter into and timely perform its obligations under this Subscription Agreement.
(f) Neither the Issuer nor anyone acting on its behalf has offered the Shares or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
Appears in 1 contract
Samples: Subscription Agreement (Ads-Tec Energy Public LTD Co)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to the Investor Subscriber and Placement Agents and agrees with Subscriber and Placement Agents as follows:
(a) 2.2.1. The Issuer is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all Islands (to the extent such concept exists in such jurisdiction), with corporate power (corporate 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. As of the Closing Date, following the Domestication, Issuer will be duly incorporated, validly existing as a corporation and in good standing under the laws of the State of Delaware.
(b) At 2.2.2. The Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Closing, subject to the receipt of the Subscription Amount Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paidnon-assessable, free and clear of any all liens or other encumbrances restrictions (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) documents, under the Companies Act, the DGCL or pursuant to any agreement or other instrument to which the laws of the Cayman IslandsIssuer is a party or by which it is otherwise bound.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the Investor, valid and binding obligation of the Issuer and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
(d) 2.2.4. The execution, delivery and performance by the Issuer of this Subscription Agreement, issuance and sale of the Shares and the compliance by the Issuer with all of the provisions of this Subscription Agreement and the consummation of the certain other transactions contemplated herein, 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 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 or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of the Issuer or to have a material adverse effect on the legal authority or ability of the Issuer to enter into and or timely perform its obligations under this Subscription Agreement (a an “Issuer Material Adverse Effect”), (ii) result in any breach or violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or bodyGovernmental Authority, domestic or foreign, having jurisdiction over the Issuer or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. [Reserved].
2.2.6. Neither the Issuer nor any person acting on its behalf offered any of the Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the New Subscription Agreements providing for the sale of certain PIPE Securities. Neither Issuer nor any of its affiliates has entered into any side letter agreements or other agreements or understandings (eincluding written summaries of any oral understandings) with any Other Subscriber or any other investor in connection with such Other Subscriber’s or investor’s direct or indirect equity investment in the Issuer, other than (a) Other Subscription Agreements, or (b) the Merger Agreement (or as expressly contemplated by the Merger Agreement). The New Subscription Agreements reflect the same Per Share Price and terms and conditions that are not more advantageous to any Other New Subscriber thereunder than the terms and condition hereunder (other than terms particular to the regulatory requirements of such Subscriber or its affiliates or related funds). The Other Subscription Agreements have not been amended in any material respect following the date of this Subscription Agreement.
2.2.8. The authorized capital stock of the Issuer as of the date of this Subscription Agreement consists of 550,000,000 shares as follows: (a) 500,000,000 Class A Ordinary Shares, par value $0.0001 per share, (b) 50,000,000 Class B Ordinary Shares, par value $0.0001 per share (“Authorized Class B Shares”) and (c) 5,000,000 Preference Shares, par value $0.0001 per share (“Authorized Preference Shares”). Following the Domestication, the authorized capital stock of the Issuer will consist of 10,000,000 shares of preferred stock, par value $0.0001 per share and 1,000,000,000 shares of Domesticated Issuer Common Stock. As of the date hereof, and as of immediately prior to the completion of the Acquisition (prior to giving effect to (x) any redemption of any Class A Ordinary Shares held by the Issuer’s public shareholders in connection with the consummation of the Acquisition and (y) the issuance of the PIPE Securities): (i) 34,500,000 Class A Ordinary Shares are and will be issued and outstanding; (ii) 8,625,000 Authorized Class B Shares are and will be issued and outstanding; and (iii) no Authorized Preference Shares are or will be issued or outstanding; (iv) 4,450,000 warrants to purchase an aggregate of 4,450,000 Class A Ordinary Shares (the “Private Placement Warrants”) are and will be outstanding; and (v) 8,625,000 warrants to purchase an aggregate of 8,625,000 Class A Ordinary Shares (the “Public Warrants,” and together with the Private Placement Warrants, the “Warrants”) are and will be outstanding. All (A) issued and outstanding Class A Ordinary Shares and Class B Ordinary Shares have been duly authorized and validly issued, are fully paid and are non-assessable and (B) outstanding Warrants have been duly authorized and validly issued. Except as set forth above and pursuant to the Other Subscription Agreements, the Merger Agreement and the other agreements and arrangements referred to therein, as of the date hereof, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from Issuer any Class A Ordinary Shares, Class B Ordinary Shares or other equity interests in Issuer or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, Issuer has no subsidiaries, other than First Merger Sub and Second Merger Sub (each as defined in the Merger Agreement), and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which Issuer is a party or by which it is bound relating to the voting of any securities of Issuer, other than (1) as set forth in the SEC Documents and (2) as contemplated by the Merger Agreement.
2.2.9. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (x) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to Subscriber contemplated by this Subscription Agreement and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local Governmental Authority is required on the Investorpart of the Issuer in connection with such offer and sale of Shares contemplated by this Subscription Agreement.
2.2.10. The Issuer has made available to Subscriber (fincluding via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission of this Subscription Agreement (the “SEC Documents”), which SEC Documents complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents at the time of filing, except as to the historical accounting treatment of the Warrants. Except as to the historical accounting treatment of (i) Warrants in the Issuer’s 8-K dated March 10, 2021 and (ii) the Issuer’s ordinary shares as permanent or temporary equity in each of the Issuer’s Form 10-Qs, each of the financial statements (including, in each case, any notes thereto) contained in the SEC Documents was prepared in accordance with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the Commission) and each fairly presents, in all material respects, the financial position, results of operations and cash flows of the Issuer as at the respective dates thereof and for the respective periods indicated therein. None of the 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 the light of the circumstances under which they were made, not misleading. Except for the Issuer’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2021, the Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception. There are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the SEC Documents, excluding any comments on the Registration Statement on Form S-4.
2.2.11. There are no pending or, to the knowledge of the Issuer, threatened, actions, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. There is no unsatisfied judgment or any open injunction binding upon the Issuer which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.12. Except for the Placement Agents, the Issuer has not paid, and is not obligated to pay, any brokerage, finder or other commission or similar fee in connection with the issuance and sale of the Shares.
2.2.13. The Issuer is in compliance with all applicable laws, except where such non-compliance would not, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. The Issuer has not received any written communication 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, individually or in the aggregate, be reasonably expected to have an Issuer Material Adverse Effect.
2.2.14. The issued and outstanding Issuer’s Class A Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the New York Stock Exchange (the “NYSE”) under the symbol “SNII.” The Issuer is in compliance in all material respects with the rules of the NYSE and there is no action pending or, to the knowledge of the Issuer, threatened against the Issuer by the NYSE or the Commission with respect to any intention by such entity to deregister the Issuer’s Class A Ordinary Shares or terminate the listing of the Issuer’s ordinary shares on the NYSE, except as disclosed in the SEC Documents relating to the late filing of the Issuer’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2021. None of the Issuer or its affiliates has taken any action in an attempt to terminate the registration of the Issuer’s Class A Ordinary Shares under the Exchange Act except as contemplated by the Merger Agreement. The Issuer has not received any notice from the NYSE or the Commission regarding the revocation of such listing or otherwise regarding the delisting of the Issuer’s Class A Ordinary Shares from the NYSE or the Commission, except as disclosed in the SEC Documents relating to the late filing of the Issuer’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2021.
2.2.15. 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 Shares or (ii) the shares of Domesticated Issuer Common Stock to be issued pursuant to any Other Subscription Agreement.
2.2.16. Neither the Issuer nor anyone acting on any of its behalf has offered subsidiaries is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.2.17. Issuer acknowledges and agrees that, notwithstanding anything herein to the contrary, the Shares may be pledged by Subscriber in connection with a bona fide margin agreement, which shall not be deemed to be a transfer, sale or any similar securities for sale to, or solicited any offer to buy any assignment of the same fromShares hereunder, and Issuer effecting a pledge of Shares shall not be required to provide Issuer with any notice thereof or otherwise approached or negotiated make any delivery to Issuer pursuant to this Subscription Agreement. Issuer hereby agrees to execute and deliver such documentation as a pledgee of the Shares may reasonably request in respect thereof withconnection with a pledge of the Shares to such pledgee by Subscriber.
2.2.18. No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to the Issuer or, to the Issuer’s knowledge, any person individual, corporation, partnership, trust, limited liability company, association or other than entity listed in the PIPE Investors first paragraph of Rule 506(d)(1), except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3), is applicable.
2.2.19. Based in part upon the representations and other Institutional Accredited Investorswarranties of the Subscriber in Section 2.1 of this Subscription Agreement, each of which the Issuer has been offered taken reasonable steps to verify that the Shares at a private sale for investment. “Institutional Accredited Investor” means Subscriber is an institutional accredited investor as defined in required under Rule 501(a)(1), (2), (3506(c) or (7) of Regulation D under the Securities Act.
2.2.20. Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, (x) no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber contemplated by this Subscription Agreement and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local Governmental Authority is required on the part of the Issuer in connection with such offer and sale of Shares contemplated by this Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act, and applicable state securities laws, which have been made or will be made in a timely manner.
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Samples: Subscription Agreement (Supernova Partners Acquisition Co II, Ltd.)
Issuer’s Representations, Warranties and Agreements. The To induce the Mxxxxxx Investor to purchase the Investment Securities and the SF Parties to evaluate a purchase pursuant to the SF Participation Right or SF 12-Month Option, the Issuer hereby represents and warrants to the Mxxxxxx Investor and the SF Parties and agrees with the Mxxxxxx Investor and the SF Parties as follows::
(a) 3.2.1 The Issuer is an exempted a company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all , with corporate power (corporate 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 Agreementeach Transaction Document.
(b) At 3.2.2 The issue of the ClosingInvestment Securities has been or will be duly authorized and, subject when issued to the receipt of Mxxxxxx Investor and/or the Subscription Amount SF Parties, as applicable, against full payment for the Investment Securities in accordance with the terms of this Subscription Agreement Investment Agreement, the third amended and registration on restated memorandum and articles of association of the Issuer’s Issuer (as amended from time to time) and following the updates to the register of membersmembers of the Issuer in respect of such Investment Securities (as applicable) in accordance with the Companies Act (As Revised) of the Cayman Islands, the Shares Investment Securities will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paidnon-assessable (in respect of any Ordinary Shares), free and clear of any all liens or other encumbrances restrictions (other than those arising under this Investment Agreement or any applicable securities laws) and will not have been issued in violation of of, or subject to any preemptive or similar rights created under under, the Issuer’s organizational documents third amended and restated memorandum and articles of association (as in effect at such amended from time of issuanceto time) or under the laws Companies Act (As Revised) of the Cayman Islands.
(c) This Subscription Agreement 3.2.3 Each Transaction Document has been, or will as of its respective date be, duly authorized and validly executed and delivered by the Issuer and, assuming that such Transaction Document has been duly authorized, executed and delivered by the Issuer andother parties thereto, assuming that this Subscription Agreement constitutes as applicable, shall constitute the valid and binding obligation of the InvestorIssuer and is, is or will as of its respective date be, enforceable against it 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 generally, and (ii) principles of equity, whether considered at law or equityequity (including concepts of materiality, reasonableness, good faith and fair dealing with respect to those jurisdictions that recognize such concepts). The Issuer Supplemental Share Charge has been, or prior to the execution thereof, will be duly authorized by the Issuer and will, once it has been duly executed and delivered by the Issuer and the other parties thereto, create or confirm, as applicable, legal, valid and binding first-ranking security interests that the Issuer Supplemental Share Charge purports to create for the benefit of the secured parties named therein subject to the perfection actions to be taken in accordance with and pursuant to the Issuer Supplemental Share Charge, in each case subject to the terms set forth in the Issuer Supplemental Share Charge. On or prior to the date of the Issuer Supplemental Share Charge, the Issuer will own the relevant Collateral (as defined in the Indenture) covered by the Issuer Supplemental Share Charge free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim, other than as permitted under the Indenture. All filings and other actions necessary to perfect and protect each security interest in the Collateral to be created under the Issuer Supplemental Share Charge have been, or will be, by or as soon as reasonably practicable after the date of signature of the Issuer Supplemental Share Charge (and in any event, other than in respect of any Security Document governed by English law, no later than the date falling 14 Business Days following the date of the Issuer Supplemental Share Charge), duly made or taken and are or will be by or as soon as reasonably practicable after the date of signature of the Issuer Supplemental Share Charge in full force and effect and, together with the execution and delivery of the Issuer Supplemental Share Charges by the Issuer, will create a valid first-ranking security interest in the Collateral securing the obligations of the Issuer, in favor of the Collateral Agent, in each case subject to the terms set forth in the Issuer Supplemental Share Charge.
(d) 3.2.4 The issuance and sale execution, delivery and, upon effectiveness of the Shares and Transaction Documents as a whole, performance of each Transaction Document by the Issuer (including compliance by the Issuer with all of the provisions of this Subscription Agreement in the Transaction Documents) and the consummation issuance and sale of the transactions contemplated herein, Investment Securities do not and will not (i) conflict with with, or result in a breach or violation of 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 upon, any of the property or assets of the Issuer or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries, as applicable, is a party or by which the Issuer or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of the Issuer or any of its subsidiaries, as applicable, is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries, as applicable, or (iii) result in any violation by the Issuer of any law, statute or any judgment, order, rule rule, regulation or regulation other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its subsidiaries, as applicable, or any of its properties that that, in the case of clauses (i) and (iii), would reasonably be expected expected, individually or in the aggregate, to have a an Issuer Material Adverse Effect.
. For purposes of this Investment Agreement, an “Issuer Material Adverse Effect” means an event, change, delay, development, occurrence, condition or effect with respect to the Issuer that has a material adverse effect on (ex) Assuming the accuracy assets, business, prospects, shareholders’ equity, results of operation or financial operations of the Investor’s representations Issuer and warranties set forth in Section 4.2its subsidiaries, in connection with taken as a whole by reference to the offerposition as at the date of this Agreement, sale and delivery (y) the validity of the Shares in Investment Securities, or (z) the manner contemplated by this Subscription Agreement, no registration under the Securities Act legal authority of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to the Investor.
(f) Neither enter into and timely perform its obligations under this Investment Agreement; provided, however, that no Issuer Material Adverse Effect shall be deemed to have occurred if such event, change, delay, development, occurrence, condition or effect with respect to the Issuer nor anyone acting on its behalf has offered was (i) known by the Shares Mxxxxxx Investor as at the date of this Agreement to have already occurred or any similar securities for sale toto be going to occur, or solicited (ii) caused, directly or indirectly, by any offer delay or failure by the Mxxxxxx Investor to buy any of timely pay to the same from, or otherwise approached or negotiated in respect thereof with, any person other than Issuer the PIPE Investors and other Institutional Accredited Investors, each of which has been offered purchase price for the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor Investment Securities as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Actcontemplated hereby.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a corporation in good standing under the laws of the Cayman Islands. The Issuer has all Delaware General Corporation Law (“DGCL”), with corporate power (corporate 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) At 2.2.2 The Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Closing, subject to the receipt of the Subscription Amount Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time amended and restated certificate of issuance) incorporation, bylaws, under the DGCL or the laws of the Cayman Islandsotherwise.
(c) 2.2.3 This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the InvestorSubscriber, is the valid and binding obligation of the Issuer, is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4 The Issuer is classified as a Subchapter C corporation for U.S. federal income tax purposes.
2.2.5 The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), issuance and sale of this Subscription Agreement the Shares and the consummation of the certain other transactions contemplated herein, 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 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 or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ability legal authority of the Issuer to enter into and timely perform its obligations under 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 any of its subsidiaries 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 subsidiaries or any of their respective properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.6 Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares under the Securities Act.
2.2.7 Neither the Issuer nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Shares and neither the Issuer nor any person acting on its behalf offered any of the Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.8 Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of an aggregate of 166,666,667 shares of Class A common stock for an aggregate purchase price of $2,500,000,005 (eincluding the Shares purchased and sold under this Subscription Agreement). There are no Other Subscription Agreements, side letter agreements or other agreements or understandings (including written summaries of any oral understandings) with any Other Subscriber (other than Subscribers in connection with the Other Subscription Agreements) (collectively, the “PIPE Agreements”) which include terms and conditions that are materially more advantageous to any such Other Holder (as compared to Subscriber) other than such PIPE Agreements containing any of the following: (i) any rights or benefits granted to an Other Subscriber in connection with such Other Subscriber’s compliance with any law, regulation or policy specifically applicable to such Other Subscriber or in connection with the taxable status of an Other Subscriber, (ii) any rights or benefits which are personal to an Other Subscriber based solely on its place of organization or headquarters, organizational form of, or other particular restrictions applicable to, such Other Subscriber, (iii) any rights with respect to the confidentiality or disclosure of an Other Subscriber’s identity, or (iv) any rights or benefits granted to the Issuer, Lucid or any of their respective affiliates or any of their respective partners, members, shareholders, employees or agents.
2.2.9 As of the date of this Subscription Agreement, the authorized capital stock of the Issuer consists of 501,000,000 shares of capital stock, including (a) 400,000,000 shares of Class A common stock, (b) 100,000,000 shares of Class B common stock, par value $0.0001 per share (“Class B common stock”); and (c) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Shares”). As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) 207,000,000 shares of Class A common stock are issued and outstanding; (iii) 51,750,000 shares of Class B common stock are issued and outstanding; (iv) 42,850,000 warrants to purchase 42,850,000 shares of Class A common stock (the “Private Placement Warrants”) are outstanding; and (v) 41,400,000 warrants to purchase 41,400,000 shares of Class A common stock (the “Public Warrants”) are outstanding. All (i) issued and outstanding shares of Class A common stock and Class B common stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding Private Placement Warrants and Public Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. Except as set forth above and pursuant to the Other Subscription Agreements and the Merger Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any shares of Class A common stock, or Class B common stock, or any other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, other than Merger Sub, the Issuer has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Merger Agreement and the Transaction Agreements.
2.2.10 Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (x) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to Subscriber and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local Governmental Authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement.
2.2.11 The Issuer has made available to Subscriber (fincluding via the Securities and Exchange Commission’s (the “Commission”) Neither XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer nor anyone acting with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”). None of the 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. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. There are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the SEC Documents.
2.2.12 There are no pending or, to the knowledge of the Issuer, threatened, actions, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. As of the date hereof, there is no unsatisfied judgment or any open injunction binding upon the Issuer which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.13 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 Shares pursuant to this Subscription Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, (iii) those required by the New York Stock Exchange, including with respect to obtaining approval of the Issuer’s stockholders, and (iv) the failure of which to obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.14 As of the date hereof, 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, an Issuer Material Adverse Effect.
2.2.15 No broker, finder or other financial consultant has acted on its behalf of Issuer in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Subscriber.
2.2.16 The Class A common stock of the Issuer is registered pursuant to Section 12(b) of the Exchange Act, and listed for trading on the New York Stock Exchange (the “NYSE”). There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by the NYSE or the Commission with respect to any intention by such entity to deregister the Class A common stock or prohibit or terminate the listing of the Class A common stock on the NYSE. The Issuer has offered taken no action that is designed to terminate the registration of the Class A common stock under the Exchange Act.
2.2.17 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 Shares or (ii) the Class A common stock to be issued pursuant to any similar securities for sale Other Subscription Agreement, in each case, that have not been or will not be validly waived on or prior to the Closing Date.
2.2.18 The Issuer acknowledges and agrees that, notwithstanding anything herein to the contrary, the Shares may be pledged in connection with a bona fide margin agreement, provided such pledge shall be (i) pursuant to an available exemption from the registration requirements of the Securities Act or (ii) pursuant to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated and in respect thereof accordance with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) registration statement that is effective under the Securities ActAct at the time of such pledge, and Subscriber effecting a pledge of such Shares shall not be required to provide the Issuer with any notice thereof; provided, however, that the Issuer shall not be required to take any action (or refrain from taking any action) in connection with any such pledge, other than providing any such lender of such margin agreement with an acknowledgment that the Shares are not subject to any contractual prohibition on pledging or lock-up, the form of such acknowledgment to be subject to the reasonable review and comment by the Issuer in all respects.
2.2.19 The Issuer is not, and has not been during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
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Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Subscription Closing Date, as follows:
(a) 2.2.1. The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has its jurisdiction of incorporation or formation, with all requisite power (corporate 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) At 2.2.2. The Subscribed Shares will be duly authorized and, when issued and delivered to Subscriber against full payment for the ClosingSubscribed Shares, subject to the receipt will be free and clear of the Subscription Amount any liens or other restrictions whatsoever in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Subscribed Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) constitutive agreements or the laws of the Cayman Islandsapplicable law.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber and the InvestorCompany, is the valid and binding obligation of the Issuer, and is enforceable against it the Issuer in accordance with its terms, except as may be limited or otherwise affected by (ia) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (iib) principles of equity, whether considered at law or equity.
2.2.4. The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance by the Issuer of this Subscription Agreement the Subscribed Shares to Subscriber and the consummation of the transactions contemplated herein, herein will not (ia) 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of the Issuer or any of its subsidiaries individually or taken as a whole, or materially affects the validity or enforceability of the Subscribed Shares or the legal authority or other ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a collectively, an “Issuer Material Adverse Effect”), (iib) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries or (iiic) 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Shares under the Securities Act.
2.2.6. Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Shares and neither the Issuer, nor any person acting on its behalf has offered any of the Subscribed Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of an aggregate of 5,000,000 Issuer Class A Ordinary Shares for an aggregate purchase price of $50,000,000 (eincluding the Subscribed Shares purchased and sold under this Subscription Agreement). There are no Other Subscription Agreements, side letter agreements or other agreements or understandings (including written summaries of any oral understandings) with any Other Subscriber or any other investor or potential investor with respect to the purchase of equity securities of the Issuer (other than as described in the last sentence of this Section 2.2.7 and pursuant to the Business Combination Agreement) which include terms and conditions (economic or otherwise) that are materially more advantageous to any such Other Subscriber, investor or potential investor (as compared to Subscriber). The Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement. This Section 2.2.7 shall not apply to any purchase of any equity securities of the Issuer by its sponsor or any of its affiliates or pursuant to the Forward Purchase Agreements (as defined in the Business Combination Agreement).
2.2.8. As of the date of this Subscription Agreement and as of immediately prior to the Subscription Closing, the authorized share capital of the Issuer consists of (a) 200,000,000 Issuer Class A Ordinary Shares, of which 23,000,000 Issuer Class A Ordinary Shares are issued and outstanding (assuming the full separation of the PAQC Units), (b) 20,000,000 Issuer’s Class B ordinary shares, par value $0.0001 per share (the “Issuer Class B Ordinary Shares” and together with the Issuer Class A Ordinary Shares, the “Issuer Ordinary Shares”), of which 5,750,000 Issuer Class B Ordinary Shares are issued and outstanding, and (c) 1,000,000 preference shares, par value $0.0001 per share, of which no preference shares are issued and outstanding. As of the date hereof, there are issued and outstanding warrants in respect of 18,100,000 Issuer Class A Ordinary Shares, which will entitle the holders thereof to purchase Issuer Class A Ordinary Shares at an exercise price of $11.50 per share on the terms and conditions set forth in the applicable warrant agreement. All issued and outstanding Issuer Ordinary Shares have been duly authorized and validly issued, are fully paid, non-assessable and are not subject to preemptive or similar rights. Except as set forth above and in the SEC Documents (as defined below) and pursuant to the Other Subscription Agreements, the Business Combination Agreement and the Ancillary Agreements (as defined in the Business Combination Agreement), there are no outstanding, and between the date hereof and the Subscription Closing, the Issuer will not issue, sell or cause to be outstanding any (i) shares, equity interests or voting securities of the Issuer, (ii) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, (iii) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to subscribe for, purchase or acquire from any individual, entity or other person, and no obligation of the Issuer to issue, any Issuer Ordinary Shares or any other equity interests or voting securities in the Issuer or any securities convertible into or exchangeable or exercisable for such shares or other equity interests or voting securities, (iv) equity equivalents or other similar rights of or with respect to the Issuer, or (v) obligations of the Issuer to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, options, equity equivalents, interests or rights. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than as set forth in the SEC Documents and as contemplated by the Business Combination Agreement and the Ancillary Agreements (as defined in the Business Combination Agreement).
2.2.9. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (a) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Subscribed Shares by the Issuer to Subscriber and (b) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority, self-regulatory organization or other person is required on the Investorpart of the Issuer in connection with the Subscription, except for (i) filings with the Commission, (ii) filings required by applicable state securities laws, (iii) filings required in accordance with Section 7.1, (iv) filings required by The Nasdaq Stock Market (“Nasdaq”), (v) filings, authorizations or approvals required to consummate the Transactions in accordance with the Business Combination Agreement, and (vi) such consent, approval, order, authorization, registration, qualification, designation, declaration or filings the failure of which to obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
(f2.2.10. As of the date of this Subscription Agreement, the issued and outstanding Issuer Ordinary Shares are registered pursuant to Section 12(b) Neither of the Exchange Act and are listed for trading on Nasdaq under the symbol “PAQC.” There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer nor anyone acting on its behalf has offered by Nasdaq or the Commission with respect to any intention by such entity to deregister the Issuer Ordinary Shares or any similar securities for sale toprohibit or terminate the listing of the Issuer Ordinary Shares on Nasdaq.
2.2.11. There are no pending or, to the knowledge of the Issuer, threatened, suits, claims, actions, or solicited proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. There is no unsatisfied judgment or any offer open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to buy have an Issuer Material Adverse Effect.
2.2.12. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer Material Adverse Effect. The Issuer has not received any written communication from a governmental entity, exchange or self-regulatory organization 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, individually or in the aggregate, be reasonably expected to have an Issuer Material Adverse Effect.
2.2.13. The Issuer made available to Subscriber (including via the Commission’s EXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Securities Act and the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder and applicable to the SEC Documents. None of the 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; provided that the Issuer makes no such representation or warranty with respect to the registration statement on Form F-4 to be filed by the Company with respect to the Transactions or any other information relating to the Company or any of its affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. There are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the same fromSEC Documents.
2.2.14. No broker, finder or otherwise approached other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or negotiated the transactions contemplated hereby in respect thereof withsuch a way as to create any liability on Subscriber.
2.2.15. The Issuer is not, and immediately after receipt of payment for the Subscribed Shares will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.2.16. Other than as set forth in the Business Combination Agreement, 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 the Subscribed Shares to Subscriber or pursuant to any person Other Subscription Agreement that have not been or will not be validly waived on or prior to the First Merger Effective Time. For the avoidance of doubt, this Section 2.2.16 shall not apply to (a) the securities or instruments issued pursuant to the Forward Purchase Agreements or any other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined document entered into in Rule 501(a)(1), (2), (3) connection therewith or (7b) under the Securities ActIssuer Class A Ordinary Shares issued in connection with the conversion of the Issuer Class B Shares pursuant to the PAQC Governing Document, the Business Combination Agreement and the Sponsor Letter Agreement.
Appears in 1 contract
Samples: Subscription Agreement (Provident Acquisition Corp.)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Issuer is an exempted a company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all Islands (to the extent such concept exists in such jurisdiction), with corporate power (corporate or otherwise) and authority to own, lease 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) At 2.2.2 The Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Closing, subject to the receipt of the Subscription Amount Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorizedvalidly issued, validly issued and allotted and fully paid, and non-assessable, free and clear of any all liens or other encumbrances restrictions (other than those arising under applicable securities lawsexcept as otherwise stated herein) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents articles of association or under the Companies Act (As Revised), as in effect at such time of issuance) or the laws amended of the Cayman Islands, under any agreement or instrument to which the Issuer is a party or by which the Issuer is bound, or otherwise.
(c) 2.2.3 This Subscription Agreement has been duly authorized, authorized and validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber and CAC, is the Investor, valid and binding obligation of the Issuer and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equityequity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts).
2.2.4 The execution, delivery, and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), issuance and sale of this Subscription Agreement the Shares, and the consummation of the certain other transactions contemplated herein, 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 charge, or encumbrance upon any of the property or assets of the Issuer Issuer, the Company or any of their respective subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license license, or other agreement or instrument to which the Issuer Issuer, the Company or any of their respective subsidiaries is a party or by which the Issuer Issuer, the Company or any of their respective subsidiaries is bound or to which any of the property or assets of the Issuer or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ability assets, business, results of operation or financial operations of the Issuer and its subsidiaries, taken as a whole (including the combined company after giving effect to the Transactions), or prevents, impairs, delays or impedes the legal authority of the Issuer to enter into and timely perform in any material respect its obligations under this Subscription Agreement (a collectively, an “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries, or (iii) result in any violation of any law, statute or any judgment, order, rule rule, regulation or regulation other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer Issuer, the Company, any of their respective subsidiaries or any of its their respective properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5 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 (ei) the Shares (ii) the shares to be issued pursuant to any Other Subscription Agreement or (iii) the shares to be issued pursuant to the Transactions, in each case, that have not been or will not be validly waived on or prior to the Closing Date.
2.2.6 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, guarantee, 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, taxing authority or regulatory 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 reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.7 As of the date of this Subscription Agreement, the authorized share capital of the Issuer consists of 469,000,001 ordinary shares of a par value of $0.0001 each and 30,999,999 preference shares of a par value of $0.0001 each, and such share is duly authorized and validly issued, and is not subject to preemptive rights or encumbrances. As of the date of this Subscription Agreement, and immediately prior to Closing, except as set forth above and pursuant to the Other Subscription Agreements, the Business Combination Agreement and the transactions contemplated thereby, there are no outstanding (1) shares, equity interests or voting securities of the Issuer, (2) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, or (3) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to acquire from any individual, entity or other person, and no obligation of the Issuer to issue, any shares or other equity interests or voting securities of the Issuer (collectively, the “Equity Interests”) or securities convertible into or exchangeable or exercisable for Equity Interests. As of the date of this Subscription Agreement, there are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than as contemplated by the Business Combination Agreement and the transactions contemplated thereby.
2.2.8 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 or self-regulatory organization in connection with the execution, delivery and performance of this Subscription Agreement (including, without limitation, the issuance of the Shares), other than (i) filings with the Securities and Exchange Commission (the “Commission”), (ii) filings required by applicable state securities laws, (iii) any filings required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 or similar antitrust laws, (iv) filings required by Nasdaq Stock Market LLC (“Nasdaq”), including with respect to obtaining Company shareholder approval, (v) consents, waivers, authorizations or filings that have been obtained or made on or prior to the Subscription, and (vi) where the failure of which to obtain would not have an Issuer Material Adverse Effect.
2.2.9 Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by 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 Shares by the Issuer to the InvestorSubscriber.
2.2.10 The Issuer is in compliance with all applicable laws, except where such non-compliance would not have an Issuer Material Adverse Effect. The Issuer has not received any written, or to its knowledge, other communication from a governmental 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, individually or in the aggregate, have an Issuer Material Adverse Effect.
2.2.11 Except for such matters as have not had or would not be reasonably expected to have, individually or in the aggregate, an Issuer Material Adverse Effect, there is no (fi) action, suit, claim or other proceeding, in each case by or before any governmental authority pending against the Issuer, or, to the knowledge of the Issuer, threatened against the Issuer or pending or threatened against the Company, or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer or, to the knowledge of the Issuer, the Company.
2.2.12 The Issuer is not, and immediately after receipt of payment for the Shares will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.2.13 Other than to the Placement Agents, no broker, finder, or other financial consultant has acted on behalf of or at the direction of the Issuer in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on Subscriber.
2.2.14 Neither the Issuer nor anyone any person acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Shares.
2.2.15 Since its formation, to the Issuer’s knowledge, neither the Issuer, the Company nor any of their respective representatives, has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) made or offered to make any unlawful payment or provided or offered to provide anything of value to foreign or domestic government officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the Shares U.S. Foreign Corrupt Practices Act of 1977 or any other local or foreign anti-corruption or bribery law, or (iii) made any other unlawful payment. Since its formation, neither the Issuer nor, to the Issuer’s knowledge, the Company nor any of their respective representatives has directly or knowingly indirectly, given or agreed to give any unlawful gift or similar securities benefit in any material amount to any customer, supplier, governmental employee or other person who is or may be in a position to help or hinder any of the Issuer or the Company or assist any of the Issuer or the Company in connection with any actual or proposed transaction. Since its formation, the operations of each of the Issuer and, to the Issuer’s knowledge, the Company are and have been conducted at all times in compliance with money laundering statutes in all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority that have jurisdiction over the Issuer or the Company. Neither the Issuer nor, to the Issuer’s knowledge, the Company nor any of their respective directors or officers, or any other representative acting on behalf of each of them, is currently (i) identified on the specially designated nationals or other blocked person list or otherwise currently subject to any sanctions administered by OFAC, the U.S. Department of State, or other applicable Governmental Authority, (ii) organized, resident, or located in, or a national of a comprehensively sanctioned country (currently, Cuba, Iran, North Korea, and the Crimea region of Ukraine), or (iii) in the aggregate, fifty (50) percent or greater owned, directly or indirectly, or otherwise controlled, by a person identified in (i) or (ii); and neither the Issuer nor, to the Issuer’s knowledge, the Company, has directly or, knowingly, indirectly, used any funds, or loaned, contributed or otherwise made available such funds to any subsidiary, joint venture partner or other person, in connection with any sales or operations in any country comprehensively sanctioned by OFAC or other applicable Governmental Authority (currently, Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine) or for sale the purpose of financing the activities of any person currently subject to, or solicited otherwise in violation of, any offer sanctions administered by OFAC or the U.S. Department of State or other applicable Governmental Authority in the last five (5) fiscal years. Neither the Issuer nor, to buy the Issuer’s knowledge, the Company, nor any of their respective directors or officers, or any other representative acting on behalf of the Issuer or the Company has engaged in any conduct, activity, or practice that would constitute a violation or apparent violation of any applicable sanctions laws administered by OFAC, the U.S. Department of State, or other applicable Governmental Authority. No Action involving the Issuer or the Company with respect to the any of the same fromforegoing is pending or, to the Issuer’s knowledge, threatened.
2.2.16 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, administration or winding up or failed to pay its debts when due, 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 seek to commence an administration.
2.2.17 The Issuer acknowledges that there have been no, and in issuing the Shares the Issuer is not relying on any, representations, warranties, covenants and agreements made to the Issuer by Subscriber, any of its officers, directors or representatives or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements expressly stated in this Subscription Agreement.
2.2.18 Upon the Closing, the Shares will not be subject to any Transfer Restriction. The term “Transfer Restriction” means any condition to or restriction on the ability of Subscriber to pledge, sell, assign or otherwise approached or negotiated in respect thereof with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered transfer the Shares at a private sale under any organizational document or agreement of the Issuer, which for investment. the avoidance of doubt excludes the restrictions on transfer described in 2.1.6 hereof with respect to the status of the Shares as “Institutional Accredited Investorrestricted securities” means pending their resale pursuant to an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) effective registration statement under the Securities Act.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing Date, as follows:
(a) 2.2.1. The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has its jurisdiction of incorporation or formation, with all requisite power (corporate 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. As of the Closing Date, the Issuer will be duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(b) At 2.2.2. The Subscribed Shares will be duly authorized and, when issued and delivered to Subscriber against full payment for the ClosingSubscribed Shares, subject to the receipt will be free and clear of the Subscription Amount any liens or other restrictions whatsoever in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Subscribed Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) constitutive agreements or the laws of the Cayman Islandsapplicable law.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the InvestorSubscriber, is the valid and binding obligation of the Issuer, and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4. The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Subscribed Shares, the transfer of the Transferred Sponsor Shares and the consummation of the other transactions contemplated herein, including the Transactions, 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is 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 or the Company or their respective subsidiaries individually or taken as a whole and including the combined company after giving effect to the Transactions, or materially affects the validity or enforceability of the Subscribed Shares or Transferred Sponsor Shares] or the legal authority or other ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a collectively, an “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Shares or transfer of the Transferred Sponsor Shares under the Securities Act.
2.2.6. Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Shares or transfer of the Transferred Sponsor Shares and neither the Issuer, the Sponsor nor any person acting on its behalf has offered any of the Subscribed Shares or Transferred Sponsor Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for (i) the sale of an aggregate of [●] Common Shares for an aggregate purchase price of $[●] (including the Subscribed Shares purchased and sold under this Subscription Agreement) , and (ii) the transfer of an aggregate of [●] Class B Common Shares (including the Transferred Sponsor Shares transferred as set forth in this Subscription Agreement). The Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement. This Section 2.2.7 shall not apply to any purchase of any equity securities of the Issuer by the sponsor of the Issuer, or any of its affiliates.
2.2.8. As of the date of this Subscription Agreement and as of immediately prior to the Transactions, the authorized share capital of the Issuer consists of 200,000,000 Class A Ordinary Shares, 20,000,000 Class B Ordinary Shares and 1,000,000 preference shares, $0.0001 par value each. All issued and outstanding ordinary shares of the Issuer have been duly authorized and validly issued, are fully paid, non-assessable and are not subject to preemptive or similar rights. Except as set forth above and pursuant to the Other Subscription Agreements, the Business Combination Agreement, the Convertible Notes (as defined in the Business Combination Agreement), the Working Capital Loans (as defined in the Business Combination Agreement), there are no outstanding, and between the date hereof and the Closing, the Issuer will not issue, sell or cause to be outstanding any (a) shares, equity interests or voting securities of the Issuer, (b) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, (c) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to subscribe for, purchase or acquire from any individual, entity or other person, and no obligation of the Issuer to issue, any ordinary shares of the Issuer, or any other equity interests or voting securities in the Issuer or any securities convertible into or exchangeable or exercisable for such shares or other equity interests or voting securities, (d) equity equivalents or other similar rights of or with respect to the Issuer, or (e) obligations of the Issuer to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, options, equity equivalents, interests or rights. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than as contemplated by the Business Combination Agreement and the Ancillary Agreements (as defined in the Business Combination Agreement).
2.2.9. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (i) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Subscribed Shares by the Issuer, and the transfer of the Transferred Sponsor Shares by the Sponsor to Subscriber and (ii) no consent, approval, order, authorization of, or registration, qualification, designation, declaration or filing 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 and the Sponsor of this Subscription Agreement (including, without limitation, the issuance of the Subscribed Shares and transfer of the Transferred Sponsor Shares), except for those applicable filings (a) with the Commission, (b) required by applicable state securities laws, (c) required in accordance with Section 4, (d) required by the New York Stock Exchange (the “NYSE”) or NASDAQ Stock Exchange (“NASDAQ”), and (e) the failure of which to obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.10. There are no pending or, to the Investorknowledge of the Issuer, threatened, suits, claims, actions, or proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. There is no unsatisfied judgment or any open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
(f) Neither 2.2.11. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer Material Adverse Effect. The Issuer has not received any written communication from a governmental entity, exchange or self regulatory organization that alleges that the Issuer nor anyone acting on 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, individually or in the aggregate, be reasonably expected to have an Issuer Material Adverse Effect.
2.2.12. The Issuer made available to Subscriber (including via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder and applicable to the SEC Documents. As of their respective dates, subject to being supplemented or amended from time to time, all SEC Documents required to be filed by the Issuer with the Commission prior to the date hereof complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder. None of the 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. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its behalf has offered inception and through the Shares date hereof. There are no material outstanding or any similar securities for sale to, or solicited any offer unresolved comments in comment letters from the Commission staff with respect to buy any of the same fromSEC Documents.
2.2.13. No broker, finder or otherwise approached other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or negotiated the transactions contemplated hereby in respect thereof withsuch a way as to create any liability on Subscriber.
2.2.14. The Issuer is not, any person other than and immediately after receipt of payment for the PIPE Investors and other Institutional Accredited InvestorsSubscribed Shares will not be, each an “investment company” within the meaning of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor Investment Company Act of 1940, as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Actamended.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Issuer is an exempted a company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all , with corporate power (corporate 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) At the Closing, subject to the receipt 2.2.2 The issue of the Subscription Amount Shares has been duly authorized and, when issued and to Subscriber against full payment for the Shares in accordance with the terms of this Subscription Agreement and registration on the Issuer’s memorandum and articles of association of the Issuer (as amended from time to time) and following the updates to the register of membersmembers of the Company in respect of such Shares in accordance with the Companies Act (As Revised) of the Cayman Islands, the Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paidnon-assessable, free and clear of any all liens or other encumbrances restrictions (other than those arising under this Agreement, the Business Combination Agreement or any applicable securities laws) and will not have been issued in violation of of, or subject to any preemptive or similar rights created under under, the Issuer’s organizational documents memorandum and articles of association (as in effect at such amended from time of issuanceto time) or under the laws Companies Act (As Revised) of the Cayman Islands.
(c) 2.2.3 This Subscription Agreement has been duly authorized, authorized and validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes has been duly authorized, executed and delivered by Subscriber and Broadstone, shall constitute the valid and binding obligation of the Investor, Issuer and is enforceable against it 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 generally, and (ii) principles of equity, whether considered at law or equityequity (including concepts of materiality, reasonableness, good faith and fair dealing with respect to those jurisdictions that recognize such concepts).
2.2.4 The execution, delivery and performance of this Subscription Agreement by the Issuer (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof) and the issuance and sale of this Subscription Agreement the Shares and the consummation of the certain other transactions contemplated herein, do not and will not (i) conflict with with, or result in a breach or violation of 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 upon, any of the property or assets of the Issuer or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries, as applicable, is a party or by which the Issuer or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of the Issuer or any of its subsidiaries, as applicable, is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries, as applicable, or (iii) result in any violation of any law, statute or any judgment, order, rule rule, regulation or regulation other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer Issuer, the Company or any of its their respective subsidiaries, as applicable, or any of their respective properties that that, in the case of clauses (i) and (iii), would reasonably be expected expected, individually or in the aggregate, to have a an Issuer Material Adverse Effect.
(e) Assuming the accuracy . For purposes of the Investor’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery of the Shares in the manner contemplated by this Subscription Agreement, no registration under an “Issuer Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to the Securities Act Issuer that has a material adverse effect on (x) the assets, business, stockholders’ or shareholders’ equity, results of 1933, as amended (the “Securities Act”) is required for the offer and sale operation or financial operations of the Shares by Issuer and its subsidiaries, taken as a whole (including the combined company after giving effect to the Transactions), (y) the validity of the Shares, or (z) the legal authority of the Issuer to the Investorenter into and timely perform its obligations under this Subscription Agreement.
(f) Neither the Issuer nor anyone acting on its behalf has offered the Shares or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a company in good standing under the laws of the Cayman Islands. The Issuer has all , with corporate power (corporate 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. As of the Closing Date, following the Domestication, the Issuer will be duly formed, validly existing as a corporation and in good standing under the laws of the State of Delaware.
(b) At 2.2.2 The Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Closing, subject to the receipt of the Subscription Amount Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents Amended and Restated Memorandum and Articles of Association (as in effect at such time of issuance) or the laws amended as of the Cayman IslandsClosing Date) (“Issuer Articles”), or under applicable law.
(c) 2.2.3 This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the InvestorSubscriber, is the valid and binding obligation of the Issuer, is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4 The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), issuance and sale of this Subscription Agreement the Shares and the consummation of the certain other transactions contemplated herein, 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 pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer Articles 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.
2.2.5 The Issuer is not in default or violation (eand 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 the Issuer is now 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 Issuer Material Adverse Effect.
2.2.6 Neither the Issuer nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares under the Securities Act.
2.2.7 Neither the Issuer nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Shares and neither the Issuer nor any person acting on its behalf offered any of the Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.8 As of the date of this Subscription Agreement, the authorized capital shares of the Issuer consists of (i) 200,000,000 Class A Ordinary Shares, (ii) 20,000,000 Class B Ordinary Shares, par value par value $0.0001 per share (“Class B Ordinary Shares”), and (iii) 1,000,000 Preferred Shares, par value $0.0001 per share (“Preferred Shares”). As of the date hereof: (i) 34,500,000 Class A Ordinary Shares are issued and outstanding; (ii) 8,625,000 Class B Ordinary Shares are issued and outstanding, (iii) no Preferred Shares are issued and outstanding; (iv) 8,900,000 warrants exercisable to purchase 8,900,000 Class A Ordinary Shares (the “Private Placement Warrants”) are issued and outstanding; and (v) 4,835,940 warrants exercisable to purchase 4,835,940 Class A Ordinary Shares (the “Public Warrants”) are issued and outstanding. All (i) issued and outstanding Class A Ordinary Shares and Class B Ordinary Shares have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) issued and outstanding Private Placement Warrants and Public Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. As of the date hereof, except as set forth above and pursuant to the Other Subscription Agreements and the Business Combination Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any Shares or any other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, other than, Umbrella Merger Sub, the Issuer has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no shareholders agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Business Combination Agreement.
2.2.9 Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (i) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to Subscriber and (ii) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local Governmental Authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for (a) filings pursuant to Regulation D under the Securities Act and applicable state securities laws, (b) filings required by Nasdaq, including with respect to obtaining shareholder approval, (iii) filings required to consummate the Transactions as provided under the definitive documents relating to the Transactions and (iv) where the failure of which to obtain would not be reasonably likely to have an Issuer Material Adverse Effect.
2.2.10 The Issuer has made available to Subscriber (fincluding via the Securities and Exchange Commission’s (the “Commission”) Neither XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer nor anyone acting on its behalf has offered with the Shares Commission prior to the date of this Subscription Agreement (the “SEC Documents”). Except as to the Warrant Accounting Matter, none of the 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; provided, that the Issuer makes no such representation or warranty with respect to the registration statement and the proxy statement to be filed by the Issuer with respect to the Transactions or any similar securities other information relating to the Companies or any of their respective affiliates included in any SEC Document or filed as an exhibit thereto. Reference is hereby made to the joint statement, on April 12, 2021, by the Acting Director of the Division of Corporation Finance and Acting Chief Accountant of the Commission titled “Staff Statement on Accounting and Reporting Considerations for sale toWarrants Issued by Special Purpose Acquisition Companies (“SPACs”)” (the “SEC Statement”), which clarified guidance for all SPACs regarding the accounting and reporting for their warrants. Following review of the SEC Statement, the Company reevaluated the accounting treatment of the Private Warrants and the Public Warrants as equity, and concluded that, as a result of the SEC Statement, the Private Warrants do not meet the conditions to be classified as equity and instead should be accounted for as derivative liabilities at each reporting period (the “Warrant Accounting Matter”). As a result of the Warrant Accounting Matter, the Company was unable to timely file its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2021 (the “Delayed 10-Q Filing”). Other than in respect of the Delayed 10-Q Filing, the Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or solicited any offer unresolved comments in comment letters from the Commission staff with respect to buy any of the same fromSEC Documents.
2.2.11 No broker, finder or other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Subscriber. The Issuer agrees to indemnify and hold harmless Subscriber from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of the Issuer and to bear the cost of legal expenses incurred by Subscriber in defending against any such claim.
2.2.12 The execution, delivery and performance of its obligations hereunder by Subscriber are, or otherwise approached are based on, commercial acts for purposes of applicable law.
2.2.13 The Class A Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act, and listed for trading on Nasdaq. There is no suit, action, proceeding or negotiated in investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by Nasdaq or the Commission with respect thereof with, to any person other than intention by such entity to deregister the PIPE Investors and other Institutional Accredited Investors, each Class A Ordinary Shares or prohibit or terminate the listing of which the Class A Ordinary Shares on Nasdaq. The Issuer has been offered not taken any action that is designed to terminate the registration of the Class A Ordinary Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Exchange Act.
2.2.14 The Subscriber acknowledges that certain information provided to it was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. The Subscriber acknowledges that such information and projections were prepared without the participation of the Issuer and that the Issuer does not assume responsibility for independent verification of, or the accuracy or completeness of, such information or projections.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares and the Warrants, the Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a corporation in good standing under the laws of the Cayman Islands. The Issuer has all Delaware General Corporation Law (“DGCL”), with corporate power (corporate 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) At 2.2.2 The Shares and the ClosingWarrants have been duly authorized and, subject when issued and delivered to Subscriber against full payment for the receipt of Shares and the Subscription Amount Warrants in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares and the Warrants will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time amended and restated certificate of issuance) incorporation or under the laws DGCL. The shares of Class A common stock issuable upon exercise of the Cayman IslandsWarrants (the “Warrant Shares”), when issued in accordance with the terms of the Warrants, 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 Issuer’s second amended and restated certificate of incorporation or under the DGCL.
(c) 2.2.3 This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the InvestorSubscriber, is the valid and binding obligation of the Issuer, is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4 The Issuer is classified as a Subchapter C corporation for U.S. federal income tax purposes.
2.2.5 The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), issuance and sale of this Subscription Agreement the Shares and the Warrants and the consummation of the certain other transactions contemplated herein, 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 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 or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ability legal authority of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries 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 subsidiaries or any of their respective properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.6 Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares or the Warrants under the Securities Act.
2.2.7 Neither the Issuer nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Shares or the Warrants and neither the Issuer nor any person acting on its behalf offered any of the Shares or the Warrants in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.8 Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of an aggregate of 132,050,000 Shares and 6,500,000 Warrants for an aggregate purchase price of $1,300,000,000 (eincluding the Shares and Warrants purchased and sold under this Subscription Agreement) (collectively, the “PIPE Securities”). There are no Other Subscription Agreements, side letter agreements or other agreements or understandings (including written summaries of any oral understandings) with any Other Subscriber (other than Subscriber in connection with the Other Subscription Agreements) (collectively, the “PIPE Agreements”) which include terms and conditions that are materially more advantageous to any such Other Holder (as compared to Subscriber) other than such PIPE Agreements containing any of the following: (i) any rights or benefits granted to an Other Subscriber in connection with such Other Subscriber’s compliance with any law, regulation or policy specifically applicable to such Other Subscriber or in connection with the taxable status of an Other Subscriber, (ii) any rights or benefits which are personal to an Other Subscriber based solely on its place of organization or headquarters, organizational form of, or other particular restrictions applicable to, such Other Subscriber, (iii) any rights with respect to the confidentiality or disclosure of an Other Subscriber’s identity, (iv) any rights granted to an Other Subscriber party to an Other Subscription Agreement with the Issuer to acquire Shares and Warrants having an aggregate purchase price (either alone or together with its Affiliates or with an investor that is commonly advised with the subscriber as determined by the Issuer) equal to or in excess of $500,000,000 in the aggregate or (vi) any rights or benefits granted to the Issuer, Holdings, Music or any of their respective Affiliates or any of their respective partners, members, shareholders, employees or agents.
2.2.9 As of the date of this Subscription Agreement, the authorized capital stock of the Issuer consists of 301,000,000 shares of capital stock, including (a) 250,000,000 shares of Class A common stock, (b) 50,000,000 shares of Class B common stock, par value $0.0001 per share (“Existing Class B Shares”); and (c) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Existing Preferred Shares”). As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) 110,000,000 shares of Class A common stock are issued and outstanding; (iii) 27,500,000 Existing Class B Shares are issued and outstanding; (iv) 23,000,000 warrants to purchase 23,000,000 shares of Class A common stock (the “Private Placement Warrants”) are outstanding; and (v) 27,500,000 warrants to purchase 27,500,000 shares of Class A common stock (the “Public Warrants”) are outstanding. All (i) issued and outstanding shares of Class A common stock and Existing Class B Shares have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding Private Placement Warrants and Public Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. Except as set forth above and pursuant to the Other Subscription Agreements, the Convert Subscription Agreements and the Merger Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any shares of Class A common stock or Class B common stock, or any other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, other than the First Merger Sub and the Second Merger Sub, the Issuer has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Merger Agreement and the Transaction Agreements.
2.2.10 Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (x) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares or the Warrants by the Issuer to Subscriber and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local Governmental Authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act and applicable state securities laws.
2.2.11 The Issuer has made available to Subscriber (fincluding via the Securities and Exchange Commission’s (the “Commission”) Neither XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer nor anyone acting on its behalf has offered with the Shares Commission prior to the date of this Subscription Agreement (the “SEC Documents”). None of the 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; provided, that the Issuer makes no such representation or warranty with respect to the proxy statement to be filed by the Issuer with respect to the Transactions or any similar securities for sale toother information relating to Music or any of its affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or solicited any offer unresolved comments in comment letters from the Commission staff with respect to buy any of the same fromSEC Documents.
2.2.12 As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened, Actions, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement. As of the date hereof, there is no unsatisfied judgment or any open injunction binding upon the Issuer which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement.
2.2.13 No broker, finder or other financial consultant has acted on behalf of Issuer in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Subscriber. The Issuer agrees to indemnify and hold harmless Subscriber from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of Issuer and to bear the cost of legal expenses incurred by Subscriber in defending against any such claim.
2.2.14 The execution, delivery and performance of its obligations hereunder by Subscriber are, or otherwise approached are based on, commercial acts for purposes of applicable law.
2.2.15 The Class A common stock of the Issuer is registered pursuant to Section 12(b) of the Exchange Act, and listed for trading on the NYSE. There is no suit, action, proceeding or negotiated in investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by the NYSE or the Commission with respect thereof with, to any person other than intention by such entity to deregister the PIPE Investors and other Institutional Accredited Investors, each Class A common stock or prohibit or terminate the listing of which the Class A common stock on the NYSE. The Issuer has been offered taken no action that is designed to terminate the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) registration of the Class A common stock under the Securities Exchange Act.
Appears in 1 contract
Samples: Subscription Agreement (Churchill Capital Corp III)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing Date, as follows:
(a) 2.2.1. The Issuer is an exempted company has been duly incorporated, is validly existing and as a corporation in good standing under the laws of the Cayman Islands. The Issuer jurisdiction of its incorporation, has all the corporate power (corporate or otherwise) and authority to own, own or lease its property and operate its properties and to conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2. The Subscribed Shares will be duly authorized and, when issued and delivered to Subscriber against full payment for the Subscribed Shares, will be free and clear of any liens or other restrictions (bother than arising under applicable securities laws) At the Closing, subject to the receipt of the Subscription Amount in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Subscribed Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) constitutive agreements or the laws of the Cayman Islandsapplicable law.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the Investorvalid and binding obligation of the Issuer, and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4. The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Subscribed Shares and the consummation of the other 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is 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, taken as a whole or materially and adversely affects the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a an “Issuer Material Adverse Effect”), (ii) result in any material violation of the provisions of the organizational documents of the Issuer or (iii) any of its subsidiaries or 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Shares under the Securities Act.
2.2.6. Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Shares and neither the Issuer, nor any person acting on its behalf has offered any of the Subscribed Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of an aggregate of 6,508,376 shares of Common Stock for an aggregate purchase price of $11,650,000 (eincluding the Subscribed Shares purchased and sold under this Subscription Agreement ).
2.2.8. As of the date of this Subscription Agreement, the authorized share capital of the Issuer consists of 200,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, $0.001 par value per share (the “Preferred Stock”). The shares of Common Stock outstanding have been duly authorized and are validly issued, fully paid and non‑assessable. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer. 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 Subscribed 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.
2.2.9. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by 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 Subscribed Shares by the Issuer to Subscriber and no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act and applicable state securities laws.
(f) Neither 2.2.10. As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened, suits, claims, actions, or proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer nor anyone acting on its behalf has offered Material Adverse Effect. As of the Shares date hereof, there is no unsatisfied judgment or any similar securities for sale open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.11. The Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or solicited make any offer 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 Subscribed Shares), other than filings with the Commission, filings required by applicable state securities laws, filings required in accordance with Section 4, those required by The Nasdaq Stock Market LLC (“Nasdaq”) or another applicable stock exchange, and filings, the failure of which to buy obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.12. The Issuer made available to Subscriber (including via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder and applicable to the SEC Documents. As of their respective dates, all SEC Documents required to be filed by the Issuer with the Commission prior to the date hereof complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder. None of the 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. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the same fromSEC Documents.
2.2.13. No broker, finder or otherwise approached other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or negotiated the transactions contemplated hereby in respect thereof withsuch a way as to create any liability on Subscriber.
2.2.14. The Issuer is not, any person other than and immediately after receipt of payment for the PIPE Investors and other Institutional Accredited InvestorsSubscribed Shares will not be, each of which has been offered the Shares at a private sale for investment. required to register as an “Institutional Accredited Investorinvestment company” means an institutional accredited investor as such term is defined in Rule 501(a)(1)the Investment Company Act of 1940, (2), (3) or (7) under the Securities Actas amended.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Note, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing Date, as follows:
(a) 2.2.1. The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has its jurisdiction of incorporation or formation, with all requisite power (corporate 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) At 2.2.2. The Note will be duly authorized and, when issued and delivered to Subscriber against full payment for the ClosingNote, subject to the receipt will be free and clear of the Subscription Amount any liens or other restrictions whatsoever in accordance with the terms of this Subscription Agreement and registration on the Issuer’s register of membersAgreement, the Shares Note will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) constitutive agreements or the laws of the Cayman Islandsapplicable law.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the InvestorSubscriber, is the valid and binding obligation of the Issuer, and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4. The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Note and the consummation of the other transactions contemplated herein, 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is 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 or its subsidiaries individually or taken as a whole and including the combined company after giving effect to the CS Merger, or materially affects the validity or enforceability of the Note or the legal authority or other ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a collectively, an “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Note under the Securities Act.
2.2.6. Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of the Note and neither the Issuer, nor any person acting on its behalf has offered the Note in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. Concurrently with or after the execution and delivery of this Subscription Agreement, the Issuer may enter into additional subscription agreements providing for the issuance of additional convertible promissory notes to third parties (“Other Subscription Agreements”). There are no side letter agreements or other agreements or understandings (including written summaries of any oral understandings) with any other investor or potential investor with respect to the purchase of equity securities of the Issuer (other than (i) any Subscriber to this Subscription Agreement, (ii) as described in this Section 2.2.7, or (ii) pursuant to the Merger Agreement) which include terms and conditions (economic or otherwise) that are materially more advantageous to any such investor or potential investor (as compared to Subscriber).
2.2.7. As of the date of this Subscription Agreement, the authorized capital stock of the Issuer consists of 37,000,000 shares of Common Stock and 20,346,398 shares of Preferred Stock, $0.0001 par value each. All issued and outstanding shares of capital stock of the Issuer have been duly authorized and validly issued, are fully paid, non-assessable and are not subject to preemptive or similar rights. As of immediately after giving effect to the CS Merger, the authorized capital stock of the Issuer will consist of 60,000,000 shares of Common Stock and 41,396,856 shares of Preferred Stock, $0.0001 par value each. Except as set forth above and pursuant to any Other Subscription Agreements, the Merger Agreement and the Business Combination Agreement, as applicable, there are no outstanding, and between the date hereof and the Closing, the Issuer will not issue, sell or cause to be outstanding any (a) shares, equity interests or voting securities of the Issuer, (b) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, (c) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to subscribe for, purchase or acquire from any individual, entity or other person, and no obligation of the Issuer to issue, any ordinary shares of the Issuer, or any other equity interests or voting securities in the Issuer or any securities convertible into or exchangeable or exercisable for such shares or other equity interests or voting securities, (d) equity equivalents or other similar rights of or with respect to the Issuer, or (e) obligations of the Issuer to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, options, equity equivalents, interests or rights. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than as contemplated by the Merger Agreement or the Business Combination Agreement.
2.2.8. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (i) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares Note by the Issuer to the Investor.
Subscriber and (fii) Neither the Issuer nor anyone acting on its behalf has offered the Shares or any similar securities for sale tono consent, approval, order, authorization of, or solicited any offer to buy any of the same fromregistration, qualification, designation, declaration or otherwise approached or negotiated in respect thereof filing with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person other than in connection with the PIPE Investors execution, delivery and other Institutional Accredited Investorsperformance by the Issuer of this Subscription Agreement (including, each without limitation, the issuance of the Note(s)), except for those applicable filings (a) with the Commission, (b) required by applicable state securities laws, (c) required by the New York Stock Exchange, and (d) the failure of which to obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.9. There are no pending or, to the knowledge of the Issuer, threatened, suits, claims, actions, or proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. There is no unsatisfied judgment or any open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.10. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer Material Adverse Effect. The Issuer has been offered not received any written communication from a governmental entity, exchange or self-regulatory organization that alleges that the Shares at 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, individually or in the aggregate, be reasonably expected to have an Issuer Material Adverse Effect.
2.2.11. No broker, finder or other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or the transactions contemplated hereby in such a private sale way as to create any liability on Subscriber.
2.2.12. The Issuer is not, and immediately after receipt of payment for investment. the Note will not be, an “Institutional Accredited Investorinvestment company” means an institutional accredited investor within the meaning of the Investment Company Act of 1940, as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Actamended.
Appears in 1 contract
Samples: Note Subscription Agreement (Freedom Acquisition I Corp.)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares and the Warrants, the Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a corporation in good standing under the laws of the Cayman Islands. The Issuer has all Delaware General Corporation Law (“DGCL”), with corporate power (corporate 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) At 2.2.2 The Shares and the ClosingWarrants have been duly authorized and, subject when issued and delivered to Subscriber against full payment for the receipt of Shares and the Subscription Amount Warrants in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares and the Warrants will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time amended and restated certificate of issuance) incorporation or under the laws DGCL. The shares of Class A common stock issuable upon exercise of the Cayman IslandsWarrants (the “Warrant Shares”), when issued in accordance with the terms of the Warrants, 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 Issuer’s second amended and restated certificate of incorporation or under the DGCL.
(c) 2.2.3 This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the InvestorSubscriber, is the valid and binding obligation of the Issuer, is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4 The Issuer is classified as a Subchapter C corporation for U.S. federal income tax purposes.
2.2.5 The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), issuance and sale of this Subscription Agreement the Shares and the Warrants and the consummation of the certain other transactions contemplated herein, 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 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 or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ability legal authority of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries 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 subsidiaries or any of their respective properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.6 Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares or the Warrants under the Securities Act.
2.2.7 Neither the Issuer nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Shares or the Warrants and neither the Issuer nor any person acting on its behalf offered any of the Shares or the Warrants in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.8 Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of an aggregate of 132,050,000 Shares and 6,500,000 Warrants for an aggregate purchase price of $1,300,000,000 (eincluding the Shares and Warrants purchased and sold under this Subscription Agreement) (collectively, the “PIPE Securities”). Neither Issuer nor any of its Affiliates has entered into or shall enter into any side letter agreements or other agreements or understandings (including written summaries of any oral understandings) with any Other Subscriber, other than (a) the Other Subscription Agreements and (b) as disclosed to Subscriber by Issuer prior to the date hereof. Each Other Subscription Agreement is identical to each other Other Subscription Agreement, other than (a) with respect to (x) the identity of the Other Subscribers and (y) the number of Shares and Warrants subscribed for by the Other Subscribers and (b) as disclosed to Subscriber by Issuer prior to the date hereof.
2.2.9 The authorized capital stock of the Issuer immediately prior to the Closing will consist of 301,000,000 shares of capital stock as follows: (a) 250,000,000 shares of Class A common stock, (b) 50,000,000 shares of Class B common stock, par value $0.0001 per share (“Existing Class B Shares”); and (c) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Existing Preferred Shares”). As of the date hereof, and as of immediately prior to the completion of the Transactions (prior to giving effect to (x) any redemption of any Class A common stock held by the Issuer’s public shareholders in connection with the consummation of the Transactions and (y) the issuance of the PIPE Securities): (i) no Preferred Shares are and will be issued and outstanding; (ii) 110,000,000 Existing Class A Shares are and will be issued and outstanding; (iii) 27,500,000 Existing Class B Shares are and will be issued and outstanding; (iv) up to 24,500,000 warrants to purchase 24,500,000 shares of Class A common stock (the “Private Placement Warrants”) are and will be outstanding; and (v) 27,500,000 warrants to purchase 27,500,000 shares of Class A common stock (the “Public Warrants”) are and will be outstanding. At the Closing, the Convert Subscribers will acquire the Convertible Notes on substantially the same terms as set forth on Annex A of the Convert Subscription Agreements. All (i) issued and outstanding shares of Class A common stock and Existing Class B Shares have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding Private Placement Warrants and Public Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. Except as set forth above and pursuant to the Other Subscription Agreements, the Convert Subscription Agreements and the Merger Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any shares of Class A common stock or Class B common stock, or any other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. Other than the First Merger Sub and the Second Merger Sub, the Issuer has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Merger Agreement and the Transaction Agreements.
2.2.10 Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (x) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares or the Warrants by the Issuer to Subscriber and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local Governmental Authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act and applicable state securities laws.
2.2.11 The Issuer has made available to Subscriber (fincluding via the Securities and Exchange Commission’s (the “Commission”) Neither XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer nor anyone acting on its behalf has offered with the Shares Commission prior to the date of this Subscription Agreement (the “SEC Documents”). None of the 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; provided, that the Issuer makes no such representation or warranty with respect to the proxy statement to be filed by the Issuer with respect to the Transactions or any similar securities for sale toother information relating to Music or any of its affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or solicited any offer unresolved comments in comment letters from the Commission staff with respect to buy any of the same fromSEC Documents.
2.2.12 As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened, Actions, which, if determined adversely, would, individually or otherwise approached in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement. As of the date hereof, there is no unsatisfied judgment or negotiated any open injunction binding upon the Issuer which would, individually or in respect thereof withthe aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement.
2.2.13 No broker, finder or other financial consultant has acted on behalf of Issuer in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any person liability on the Subscriber. The Issuer agrees to indemnify and hold harmless Subscriber from any claim or demand for commission or other than compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of Issuer and to bear the PIPE Investors and other Institutional Accredited Investors, each cost of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined legal expenses incurred by Subscriber in Rule 501(a)(1), (2), (3) or (7) under the Securities Actdefending against any such claim.
Appears in 1 contract
Samples: Subscription Agreement (Churchill Capital Corp III)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a corporation in good standing under the laws of the Cayman Islands. The Issuer has all Delaware General Corporation Law (“DGCL”), with corporate power (corporate 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) At 2.2.2 When issued and delivered to Subscriber against full payment for the Closing, subject to the receipt of the Subscription Amount Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorized, validly issued issued, fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents amended and restated certificate of incorporation (as in effect at such time of issuancethe “Charter”) or under the laws of the Cayman IslandsDGCL.
(c) 2.2.3 This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the Investorvalid and binding obligation of the Issuer, is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4 The Issuer is classified as a Subchapter C corporation for U.S. federal income tax purposes.
2.2.5 The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), issuance and sale of this Subscription Agreement the Shares and the consummation of the certain other transactions contemplated hereinherein will not, will not subject to the receipt of the Buyer Stockholder Approval and the effectiveness of the Buyer A&R Charter Amendment, (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 pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability legal authority of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “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.
2.2.6 Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares under the Securities Act.
2.2.7 Neither the Issuer nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Shares and neither the Issuer nor any person acting on its behalf offered any of the Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.8 [reserved]
2.2.9 As of the date of this Subscription Agreement, the authorized capital shares of the Issuer consists of (ea) 200,000,000 shares of Class A common stock, (b) 20,000,000 shares of Class B common stock, par value $0.0001 per share (“Class B common stock”); and (c) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Shares”). As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) 69,000,000 shares of Class A common stock are issued and outstanding; (iii) 17,250,000 shares of Class B common stock are issued and outstanding; (iv) 15,800,000 warrants to purchase 15,800,000 shares of Class A common stock (the “Private Placement Warrants”) are outstanding; and (v) 23,000,000 warrants to purchase 23,000,000 shares of Class A common stock (the “Public Warrants”) are outstanding. Subject to the receipt of the Buyer Stockholder Approval and the effectiveness of the Buyer A&R Charter Amendment, all (i) issued and outstanding shares of Class A common stock and Class B common stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding Private Placement Warrants and Public Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. Except as set forth above and as contemplated by the Study Merger Agreement or the Magnet Merger Agreement and except in respect of any Class A common stock or any warrants exercisable for shares of Class A common stock after the date hereof at a purchase price, or at an exercise price, as applicable, equal to or greater than ten dollars ($10.00) per share (before calculating any transaction expenses, original issue discounts or other similar premiums, charges and expenses that are customary for issuances of equity or equity-linked securities in connection with a private investment in a public company), there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any shares of Class A common stock or Class B common stock, or any other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, the Issuer has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Study Merger Agreement.
2.2.10 Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (x) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to Subscriber and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for (i) filings pursuant to Regulation D of the Securities Act and applicable state securities laws, (ii) filings required by the NYSE, including with respect to obtaining shareholder approval, (iii) filings required to consummate the Transactions as provided under the definitive documents relating to the Transactions and (iv) where the failure of which to obtain would not be reasonably likely to have an Issuer Material Adverse Effect.
2.2.11 The Issuer has made available to Subscriber (fincluding via the Securities and Exchange Commission’s (the “Commission”) Neither EXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer nor anyone acting on with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”). None of the 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. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its behalf has offered inception and through the Shares date hereof. As of the date hereof, there are no material outstanding or any similar securities for sale to, or solicited any offer unresolved comments in comment letters from the Commission staff with respect to buy any of the same fromSEC Documents.
2.2.12 As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened, claims, actions, suits, arbitrations, litigation or proceedings (“Actions”), which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement. As of the date hereof, there is no unsatisfied judgment or any open injunction binding upon the Issuer which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement.
2.2.13 No broker, finder or other financial consultant has acted on behalf of Issuer in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on Subscriber. The Issuer agrees to indemnify and hold harmless Subscriber from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of Issuer and to bear the cost of legal expenses incurred by Subscriber in defending against any such claim.
2.2.14 The execution, delivery and performance of its obligations hereunder by Subscriber are, or otherwise approached are based on, commercial acts for purposes of applicable law.
2.2.15 The Class A common stock of the Issuer is registered pursuant to Section 12(b) of the Exchange Act, and listed for trading on the New York Stock Exchange (“NYSE”). There is no suit, action, proceeding or negotiated in investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by the NYSE or the Commission with respect thereof with, to any person other than intention by such entity to deregister the PIPE Investors and other Institutional Accredited Investors, each Class A common stock or prohibit or terminate the listing of which the Class A common stock on the NYSE. The Issuer has been offered taken no action that is designed to terminate the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) registration of the Class A common stock under the Securities Exchange Act.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of each Closing Date, as follows:
(a) 2.2.1. The Issuer is an exempted company has been duly incorporated, is validly existing and as a corporation in good standing under the laws of the Cayman Islands. The Issuer jurisdiction of its incorporation, has all the corporate power (corporate or otherwise) and authority to own, own or lease its property and operate its properties and to conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2. The Subscribed Shares will be duly authorized and, when issued and delivered to Subscriber against full payment for the Subscribed Shares, will be free and clear of any liens or other restrictions (bother than arising under applicable securities laws) At the Closing, subject to the receipt of the Subscription Amount in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Subscribed Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) constitutive agreements or the laws of the Cayman Islandsapplicable law.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the Investorvalid and binding obligation of the Issuer, and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4. The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Subscribed Shares and the consummation of the other 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is 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, taken as a whole or materially and adversely affects the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a an “Issuer Material Adverse Effect”), (ii) result in any material violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Shares under the Securities Act.
2.2.6. Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Shares and neither the Issuer, nor any person acting on its behalf has offered any of the Subscribed Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of an aggregate of 16,975,298 shares of Common Stock for an aggregate purchase price of $27,500,000 (eincluding the Subscribed Shares purchased and sold under this Subscription Agreement).
2.2.8. As of the date of this Subscription Agreement, the authorized share capital of the Issuer consists of 200,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, $0.001 par value per share (the “Preferred Stock”). The shares of Common Stock outstanding have been duly authorized and are validly issued, fully paid and non‑assessable. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer. 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 Subscribed 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 each Closing.
2.2.9. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (i) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Subscribed Shares by the Issuer to Subscriber and (ii) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act and applicable state securities laws.
(f) Neither 2.2.10. As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened, suits, claims, actions, or proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer nor anyone acting on its behalf has offered Material Adverse Effect. As of the Shares date hereof, there is no unsatisfied judgment or any similar securities for sale open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.11. The Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or solicited make any offer 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 Subscribed Shares), other than (i) filings with the Commission, (ii) filings required by applicable state securities laws, (iii) those required by The Nasdaq Stock Market LLC (“Nasdaq”) or another applicable stock exchange, and (iv) filings, the failure of which to buy obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.12. The Issuer made available to Subscriber (including via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder and applicable to the SEC Documents. As of their respective dates, all SEC Documents required to be filed by the Issuer with the Commission prior to the date hereof complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder. None of the 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. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the same fromSEC Documents.
2.2.13. No broker, finder or otherwise approached other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or negotiated the transactions contemplated hereby in respect thereof withsuch a way as to create any liability on Subscriber.
2.2.14. The Issuer is not, any person other than and immediately after receipt of payment for the PIPE Investors and other Institutional Accredited InvestorsSubscribed Shares will not be, each of which has been offered the Shares at a private sale for investment. required to register as an “Institutional Accredited Investorinvestment company” means an institutional accredited investor as such term is defined in Rule 501(a)(1)the Investment Company Act of 1940, (2), (3) or (7) under the Securities Actas amended.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The Issuer hereby represents and warrants to the Investor as follows:
(a) The Issuer is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all power (corporate or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and contemplated to be conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
(b) At the Closing, subject the Issuer Shares will have been duly authorized, and when issued and delivered to the receipt of Investor against (i) full payment in cash for the Subscription Amount Issuer Shares in accordance with the terms of this Subscription Agreement if the Investor elects the Cash Option or (ii) issuance of the Investor Shares in full in accordance with the terms of this Agreement if the Investor elects the Share Issuance Option, and registration on in each case registered in the Issuer’s register of members, the Issuer Shares will be duly authorized, validly issued and allotted and fully paidpaid and non-assessable, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) or the laws of the 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 obligation of the Investor, is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
(d) The issuance and sale of the Issuer 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 pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under 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 Investor’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery of the Issuer Shares in the manner contemplated by 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 Issuer Shares by the Issuer to the Investor. The Issuer Shares (i) were not offered to the Investor by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
(f) Neither The Issuer will use the cash proceeds of the sale of the Issuer nor anyone acting on its behalf has offered Shares contemplated by the Shares Equity Subscription Agreements and this Agreement exclusively to operate the Issuer’s business post-Closing and will not, directly or any similar securities for sale toindirectly, or solicited in any offer way, use the proceeds, or lend, contribute or otherwise make available such proceeds to buy any affiliates, subsidiaries, or its parent or other person or entity, for the purpose of financing the activities of any person, entity or country currently subject to sanctions imposed by any of the same fromlaws of a relevant and applicable jurisdiction, or otherwise approached or negotiated including the jurisdiction(s) in respect thereof withwhich the Agreement will take place, any person other than the PIPE Investors and other Institutional Accredited Investors, each United States (including sanctions programs administered by the US Department of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1Treasury’s Office of Foreign Assets Control), United Kingdom and the European Union.
(2)g) If the Issuer will receive the Investor Shares due to the Investor’s election of the Share Issuance Option pursuant to this Agreement, the Issuer (3i) or is an “accredited investor” (7within the meaning of Rule 501(a) under the Securities Act), (ii) is acquiring the Investor Shares only for its own account and not for the account of others, and (iii) is not acquiring the Investor Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act.
(h) If the Issuer will receive the Investor Shares due to the Investor’s election of the Share Issuance Option pursuant to this Agreement, the Issuer acknowledges and agrees that (i) the Investor Shares were not offered by any form of general solicitation or general advertising and are being offered in a transaction not involving any public offering within the meaning of the Securities Act and, that the Investor Shares have not been registered under the Securities Act and the Investor is not required to register the Investor Shares except as set forth in Section 6, (ii) the Investor Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Issuer absent an effective registration statement under the Securities Act, except (A) to the Investor or a subsidiary thereof, (B) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of and in compliance with Regulation S under the Securities Act or (C) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in each case, in accordance with any applicable securities laws of the states of the United States and other applicable jurisdictions, and that any book-entry position or certificates representing the Investor Shares shall contain a restrictive legend to such effect, (iii) the Investor Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Issuer may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Investor Shares and may be required to bear the financial risk of an investment in the Investor Shares for an indefinite period of time, (iv) the Investor Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least six months from the issuance date thereof and to the extent Rule 144 is available, and (v) it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, transfer, pledge or disposition of any of the Investor Shares.
(i) If the Issuer will receive the Investor Shares due to the Investor’s election of the Share Issuance Option pursuant to this Agreement, the Issuer acknowledges and agrees that (i) the Issuer is purchasing the Investor Shares directly from the Investor and (ii) there have been no representations, warranties, covenants and agreements made to the Issuer by or on behalf of the Investor, any of its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of the Investor expressly set forth in Section 4.2 of this Agreement.
(j) If the Investor elects the Share Issuance Option, the Issuer acknowledges and agrees that (i) the Issuer has received such information as the Issuer deems necessary in order to make an investment decision with respect to the Investor Shares, including, with respect to the Investor and the business of the Investor and its subsidiaries, (ii) the Issuer has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Investor, and (iii) the Issuer is capable of bearing the economic risks of such investment, including a complete loss of its investment.
(k) If the Investor elects the Share Issuance Option, the Issuer acknowledges and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Investor Shares or made any findings or determination as to the fairness of this investment.
(l) The Issuer is not (i) a person or entity named on the Specially Designated Nationals and Blocked Persons List administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC, or a person or entity prohibited by any OFAC Sanctions program, or any similar list of sanctioned persons administered by the European Union or the United Kingdom (collectively, “Sanctions Lists”); (ii) directly or indirectly, owned or controlled by, or acting on behalf of, one or more persons that are named on the Sanctions Lists; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national or the government, including any political subdivision, agency or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union or the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non- U.S. shell bank (each, a “Prohibited Investor”). The Issuer agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided that the Issuer is permitted to do so under applicable law. To the extent required, the Issuer maintains procedures that it reasonably believes to be in compliance with sanctions programs administered by the United States, the European Union and the United Kingdom. To the extent required and from and after the closing of the Transaction, the Issuer shall maintain procedures adequate and necessary to ensure its compliance with sanctions programs administered by the United States, the European Union and the United Kingdom, and the Issuer shall comply with such sanctions programs to which it is legally subject and with which it is legally obligated to comply.
(m) No broker, finder or other financial consultant is acting on behalf of the Issuer in connection with this Agreement or the transactions contemplated hereby in such a way as to create any liability of the Investor for the payment of any fees, costs, expenses or commissions.
(n) (i) The Equity Subscription Agreements reflect or will reflect the same Per Share Purchase Price and other material terms and conditions (including the registration rights) with respect to the purchase of the Issuer Shares that are no more favorable to any Other Equity Investor thereunder in any material respect than the terms of this Agreement, other than terms particular to the issuance of the Investor Shares to the Issuer hereunder (if the Investor elects the Share Issuance Option), SPAC as a signing party thereto, the nature of cash investment by such Other Equity Investor, the regulatory requirements of the Other Equity Investors or their respective affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of the related Issuer Shares (collectively, the “Excluded Terms”), and (ii) any Permitted Financing Agreement to the extent it provides for the issuance of Equity Securities of the Issuer, other than (A) the convertible note purchase agreement dated May 9, 2022 by and between the Issuer and Lotus Technology Inc. and the convertible note dated May 13, 2022 issued by the Issuer to Lotus Technology Inc., and (B) any Permitted Financing Agreement pursuant to which (I) the Equity Securities of the Issuer to be issued thereunder are convertible into the Issuer Shares at an effective conversion price of no less than the Per Share Purchase Price, and (II) the Permitted Financing Proceeds thereunder will be funded prior to (and not subject to) the consummation of the Transaction (the agreements in (A) and (B) are collectively referred to as the “Excluded Subscription Agreements”), will not contain any terms (other than the Excluded Terms as applied mutatis mutandis) that provide a greater economic benefit with respect to such Equity Securities of the Issuer to be received by the Financing Party than the benefits to be received by the Investor under this Agreement.
(o) None of the Equity Subscription Agreements shall be amended, modified or terminated, and no provision thereof may be waived, in each case, in any way which would adversely affect the rights of the Investor in a manner disproportionate to any adverse effect such amendment, modification, termination or waiver would have on the rights of any of the Other Equity Investors. In addition, no Permitted Financing Agreement shall be entered into, amended, modified or terminated, and no provision thereof may be waived, in each case, in any way which would adversely affect the rights of the Investor solely with respect to the Issuer Shares in a manner disproportionate to any adverse effect such amendment, modification, termination or waiver would have on the rights of any Financing Party solely with respect to the Equity Securities of the Issuer to be received by such Financing Party pursuant to the applicable Permitted Financing Agreement. In addition, if the Issuer provides any terms more favorable to any of the Other Equity Investors with respect to the Issuer Shares under the Equity Subscription Agreements (but excluding the Excluded Terms) or terms more favorable to any of the Financing Parties with respect to the Equity Securities of the Issuer under the Permitted Financing Agreements (but excluding the Excluded Terms as applied mutatis mutandis) than those terms provided to the Investor, either directly or indirectly by amendment, merger, consolidation, recapitalization, reclassification, or otherwise, the Issuer shall promptly provide the Investor with written notice thereof, and, upon written request of the Investor, any additional information related to such terms as may be reasonably requested by the Investor. In the event the Investor determines that such terms are preferable to the terms contemplated herein and seeks to receive any such terms, the Investor shall notify the Issuer in writing within 10 days of the receipt of the Issuer’s notice. Promptly after receipt of such written notice from the Investor, the Issuer agrees to amend and restate any required documents to provide identical terms to the Investor. Notwithstanding anything to the contrary in this Agreement, this Section 4.1(o) shall not apply to the Excluded Subscription Agreements.
Appears in 1 contract
Samples: Strategic Investment Agreement
Issuer’s Representations, Warranties and Agreements. The Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a corporation in good standing under the laws of its jurisdiction of incorporation and following the Cayman Islands. The Issuer has all Domestication shall be validly existing as a corporation in good standing under the Delaware General Corporation Law (“DGCL”), with corporate power (corporate 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) At 2.2.2 The Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Closing, subject to the receipt of the Subscription Amount Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time amended and restated certificate of issuance) incorporation or under the laws of the Cayman IslandsDGCL.
(c) 2.2.3 This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the Investor, is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
2.2.4 Subject to obtaining all required approvals necessary in connection with the performance of the Merger Agreement (dincluding the approval of the Company’s stockholders for the Merger Agreement and the related Transactions including the transactions contemplated by this Subscription Agreement, the Redemption Subscription Agreement, the Sponsor Subscription Agreement and the Other Subscription Agreements) The and any required applications and approvals pursuant to the applicable rules of Nasdaq (together, the “Required Approvals”) and assuming the accuracy of Subscriber's representation in Section 2.1.3, the execution, delivery and performance of this Subscription Agreement, issuance and sale of the Shares and the compliance by the Issuer with all of the provisions of this Subscription Agreement and the consummation of the certain other transactions contemplated herein, 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 pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer (after Domestication) or (iiiii) result in any violation of any statute Law 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 on the validity of the Shares or the legal authority or ability of the Issuer to perform in all material respects its obligations under this Subscription Agreement, subject to the exceptions in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an “Issuer Material Adverse Effect”).
2.2.5 As of the date of this Agreement, the authorized share capital of the Issuer is $55,500.00 divided into (i) 500,000,000 shares of Class A common stock, 27,800,287 of which are issued and outstanding (subject to all Cayman Acquiror Units separating in full), (ii) 50,000,000 shares of Class B common stock, of which 6,950,072 shares are issued and outstanding and (iii) 5,000,000 preferred shares of which none and issued and outstanding (clauses (i) and (ii) collectively, the "Cayman Securities"). As of immediately prior to the First Effective Time (without giving effect to any subscriptions under this Subscription Agreement, the Other Subscription Agreements, the Sponsor Subscription Agreement or the Redemption Subscription Agreement), the authorized share capital of the Issuer will be $325,000.00 divided into (i) 1,750,000,000 shares of Acquiror Class A Common Stock, 34,750,359 of which will be issued and outstanding (subject to all Domesticated Acquiror Units separating in full), (ii) 600,000,000 shares of Acquiror Class B Common Stock, of which 0 shares will be issued and outstanding, (iii) 800,000,000 shares of Domesticated Acquiror Class C Common Stock, of which 0 shares will be issued and outstanding, and (iv) 100,000,000 shares of blank check preferred stock, of which 0 shares will be issued and outstanding (such terms as defined in the Merger Agreement).
2.2.6 Except for the securities referenced in Section 2.2.5 above and the obligations of the Issuer under the Merger Agreement (or as contemplated thereby), this Subscription Agreement, the Other Subscription Agreements, the Redemption Subscription Agreement and the Sponsor Subscription Agreement in connection with the transactions contemplated hereby and thereby, there are no outstanding, and between the date hereof and the Closing, the Issuer will not issue, sell or cause to be outstanding any (a) shares, equity interests or voting securities of the Issuer, (b) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, (c) options, warrants or other rights (including preemptive rights) or agreements, arrangement or commitments of any character, whether or not contingent, of the Issuer to acquire from any individual, entity or other person, and no obligation of the Issuer to issue, any shares or other equity interests or voting securities of the Issuer or any securities convertible into or exchangeable for such shares or other equity interest or voting securities, (d) equity equivalents or other similar rights of or with respect to the Issuer, or (e) obligations of the Issuer to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, options, equity equivalents, interests or rights.
2.2.7 Other than the Other Subscription Agreements, the Sponsor Subscription Agreement, the Redemption Subscription Agreement, the Merger Agreement and any other agreement expressly contemplated by the Merger Agreement, the Issuer has not entered into any side letter or similar agreement with any other subscriber or any other investor in connection with such other subscriber’s or investor’s direct or indirect equity investment in the Issuer (other than any side letter or similar agreement relating to the transfer to any investor of (i) securities of the Issuer by existing securityholders of the Company, which may be effectuated as a forfeiture to the Issuer and reissuance, or (ii) securities to be issued to the direct or indirect securityholders of the Issuer pursuant to the Merger Agreement).
2.2.8 Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by 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 Shares by the Issuer to the InvestorSubscriber.
2.2.9 The issued and outstanding shares of Class A common stock of the Issuer are registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (fthe “Exchange Act”), and are listed for trading on Nasdaq. The Issuer has made available to Subscriber (including via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer (including the Merger Agreement) with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, except in the case of the accounting treatment of the warrants, as of their respective filing dates, complied, as to form, in all material respects with the requirements of the Securities Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act and any rules and regulations promulgated thereunder applicable to the SEC Documents (in each case in effect as of the date of filing). None of the SEC Documents filed under the Exchange Act, contained, as of the respective date of its filing or, if amended prior to the date of this Subscription Agreement or the Closing Date, 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 the light of the circumstances under which they were made, not misleading; provided that the Issuer makes no such representation or warranty with respect to the proxy statement/prospectus included in the PIPE Registration Statement to be filed in connection with the approval of the Merger Agreement by the stockholders of the Issuer (the “Proxy Statement/Prospectus”) or any other information relating to the Company or any of its Affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the SEC Documents.
2.2.10 Neither the Issuer Issuer, nor anyone any person acting on its behalf has offered the Shares has, directly or indirectly, made any similar securities for sale to, offers or sales of any Issuer security or solicited any offer offers to buy any security under circumstances that would adversely affect reliance by the Issuer on an exemption from registration for the transactions contemplated hereby under the Securities Act or would require registration of the same fromissuance of the Shares under the Securities Act.
2.2.11 No Disqualification Event is applicable to the Issuer or, to the Issuer’s knowledge, any Issuer Covered Person (as defined below), except for a Disqualification Event as to which Rule 506(d)(2)(ii)-(iv) or otherwise approached or negotiated in (d)(3) under the Securities Act is applicable. The Issuer has complied, to the extent applicable, with any disclosure obligations under Rule 506(e) under the Securities Act. “Issuer Covered Person” means, with respect thereof withto the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person other than listed in the PIPE Investors and other Institutional Accredited Investors, each first paragraph of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7506(d)(1) under the Securities Act.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, each of the Cayman Issuer and New Pubco hereby represents represent and warrants warrant to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Cayman Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a company in good standing under the laws of the Cayman Islands. The Issuer has all , with corporate power (corporate 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) At 2.2.2 New Pubco has been duly incorporated and is validly existing as a corporation in good standing under the Closing, subject to the receipt 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 Amount Agreement.
2.2.3 The Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time amended and restated certificate of issuance) incorporation or under the laws of the Cayman IslandsDelaware General Corporation Law.
(c) 2.2.4 This Subscription Agreement has been duly authorized, validly executed and delivered by each of the Cayman Issuer and New Pubco and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the InvestorSubscriber, is the valid and binding obligation of each of the Cayman Issuer and New Pubco, is enforceable against it each of the Cayman Issuer, and New Pubco in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
2.2.5 The execution, delivery and performance of this Subscription Agreement (d) The including compliance by each of the Cayman Issuer and New Pubco with all of the provisions hereof), issuance and sale of the Shares and the compliance by the Issuer with all of the provisions of this Subscription Agreement and the consummation of the certain other transactions contemplated herein, 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 any of the Issuer Cayman Issuer, New Pubco or any of their respective subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which any of the Issuer Cayman Issuer, New Pubco or any of their respective subsidiaries is a party or by which any of the Issuer Cayman Issuer, New Pubco or any of their respective subsidiaries is bound or to which any of the property or assets of any of the Issuer Cayman Issuer, New Pubco or any of their respective subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ability of any of the Cayman Issuer or New Pubco to enter into and timely perform its their obligations under this Subscription Agreement (a “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of any of the Issuer Cayman Issuer, New Pubco or any of their respective subsidiaries 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 any of the Issuer Cayman Issuer, New Pubco or any of its their respective subsidiaries or any of their respective properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.6 Neither the Cayman Issuer, New Pubco nor any person acting on their respective behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares under the Securities Act.
2.2.7 Neither the Cayman Issuer, New Pubco nor any person acting on their respective behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Shares and neither the Cayman Issuer, New Pubco nor any person acting on their respective behalf offered any of the Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.8 As of the date of this Subscription Agreement, the authorized capital shares of the Cayman Issuer consists of (ea) 200,000,000 Shares and (b) 2,000,000 shares of Preferred Shares, par value $0.0001 per share (“Preferred Shares”). As of immediately prior to the Closing, the authorized capital shares of New Pubco will consist of (i) 6,000,000,000 Class A Shares, (ii) 1,000,000 shares of Class B common stock, par value $0.0001 per share (“Class B Shares”) and 600,000,000 shares of preferred stock, par value $0.0001 per share. As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) 35,937,500 Ordinary Shares are issued and outstanding (“Existing Shares”); (iii) 7,750,000 warrants exercisable to purchase 7,750,000 Ordinary Shares (the “Private Placement Warrants”) are outstanding; and (v) 28,750,000 warrants exercisable to purchase 14,375,000 Ordinary Shares (the “Public Warrants”) are outstanding. All (i) issued and outstanding Existing Shares have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding Private Placement Warrants and Public Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. Except as set forth above and pursuant to the Other Subscription Agreements and the Transaction Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any Shares or any other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, other than, New Pubco, Purchaser Merger Sub and Blocker Merger Sub, the Cayman Issuer has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Transaction Agreement.
2.2.9 Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (x) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to Subscriber and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local Governmental Authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for (i) filings pursuant to Regulation D of the Securities Act and applicable state securities laws, (ii) filings required by the NYSE, including with respect to obtaining shareholder approval, (iii) filings required to consummate the Transactions as provided under the definitive documents relating to the Transactions and (iv) where the failure of which to obtain would not be reasonably likely to have an Issuer Material Adverse Effect.
2.2.10 The Cayman Issuer has made available to Subscriber (fincluding via the Securities and Exchange Commission’s (the “Commission”) Neither EXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Cayman Issuer nor anyone acting on its behalf has offered with the Shares Commission prior to the date of this Subscription Agreement (the “SEC Documents”) which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents. None of the 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; provided, that the Cayman Issuer makes no such representation or warranty with respect to the proxy statement/prospectus to be filed by the Cayman Issuer and/or New Pubco with respect to the Transactions or any similar securities other information relating to FoA or any of its affiliates included in any SEC Document or filed as an exhibit thereto. The financial statements of the Cayman Issuer included in the SEC Documents comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of the Cayman Issuer as of and for sale tothe dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments. The Cayman Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Cayman Issuer was required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or solicited any offer unresolved comments in comment letters from the Commission staff with respect to buy any of the same fromSEC Documents.
2.2.11 No broker, finder or other financial consultant has acted on behalf of the Cayman Issuer or New Pubco in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Subscriber. Each of the Cayman Issuer and New Pubco agrees to indemnify and hold harmless Subscriber from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of the Cayman Issuer or New Pubco and to bear the cost of legal expenses incurred by Subscriber in defending against any such claim.
2.2.12 The execution, delivery and performance of its obligations hereunder by Subscriber are, or otherwise approached are based on, commercial acts for purposes of applicable law.
2.2.13 The Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act, and listed for trading on the NYSE. There is no suit, action, proceeding or negotiated investigation pending or, to the knowledge of the Cayman Issuer or New Pubco, threatened against the Cayman Issuer or New Pubco by the NYSE or the Commission with respect to any intention by such entity to deregister the Ordinary Shares or prohibit or terminate the listing of the Ordinary Shares on the NYSE. Neither the Cayman Issuer or New Pubco has taken any action that is designed to terminate the registration of the Shares under the Exchange Act.
2.2.14 As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened actions, which, if determined adversely, would, individually or in respect thereof withthe aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement. As of the date hereof, there is no unsatisfied judgment or any person open injunction binding upon the Issuer which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement.
2.2.15 The Issuer has not entered into any subscription agreement, side letter or similar agreement with any Other Subscriber or any other investor in connection with such Other Subscriber’s or investor’s direct or indirect investment in the Issuer other than (i) the PIPE Investors Transaction Agreement and other Institutional Accredited Investors, each (ii) the Other Subscription Agreements. No Other Subscription Agreement includes terms and conditions that are materially more advantageous to any such Other Subscriber than Subscriber hereunder. The Other Subscription Agreements have not been amended in any material respect following the date of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Actthis Subscription Agreement.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing Date, as follows:
(a) 2.2.1. The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has its jurisdiction of incorporation or formation, with all requisite power (corporate 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. As of the Closing Date, the Issuer will be duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(b) At 2.2.2. The Subscribed Shares will be duly authorized and, when issued and delivered to Subscriber against full payment for the ClosingSubscribed Shares, subject to the receipt will be free and clear of the Subscription Amount any liens or other restrictions whatsoever in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Subscribed Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) constitutive agreements or the laws of the Cayman Islandsapplicable law.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the InvestorSubscriber, is the valid and binding obligation of the Issuer, and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4. The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Subscribed Shares and the consummation of the other transactions contemplated herein, including the Transactions, 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is 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 or 23andMe or their respective subsidiaries individually or taken as a whole and including the combined company after giving effect to the Transactions, or materially affects the validity or enforceability of the Subscribed Shares or the legal authority or other ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a collectively, an “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Shares under the Securities Act.
2.2.6. Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Shares and neither the Issuer, nor any person acting on its behalf has offered any of the Subscribed Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of an aggregate of 25,000,000 Common Shares for an aggregate purchase price of $250,000,000 (including the Subscribed Shares purchased and sold under this Subscription Agreement ). There are no Other Subscription Agreements, side letter agreements or other agreements or understandings (including written summaries of any oral understandings) with any Other Subscriber or any other investor or potential investor with respect to the purchase of equity securities of the Issuer (other than as described in the last sentence of this Section 2.2.7 and pursuant to the Business Combination Agreement) which include terms and conditions (economic or otherwise) that are materially more advantageous to any such Other Subscriber, investor or potential investor (as compared to Subscriber). The Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement. This Section 2.2.7 shall not apply to any purchase of any equity securities of the Issuer by the Xxxx Xxxxxxxx Foundation, by the sponsor of VG Acquisition Corp., or any of their respective affiliates.
2.2.8. As of the date of this Subscription Agreement and as of immediately prior to the Transactions, the authorized share capital of the Issuer consists of 200,000,000 Class A ordinary shares, 20,000,000 Class B ordinary shares and 1,000,000 preference shares, $0.0001 par value each. All issued and outstanding ordinary shares of the Issuer have been duly authorized and validly issued, are fully paid, non-assessable and are not subject to preemptive or similar rights. Except as set forth above and pursuant to the Other Subscription Agreements and the Business Combination Agreement, there are no outstanding, and between the date hereof and the Closing, the Issuer will not issue, sell or cause to be outstanding any (a) shares, equity interests or voting securities of the Issuer, (b) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, (c) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to subscribe for, purchase or acquire from any individual, entity or other person, and no obligation of the Issuer to issue, any ordinary shares of the Issuer, or any other equity interests or voting securities in the Issuer or any securities convertible into or exchangeable or exercisable for such shares or other equity interests or voting securities, (d) equity equivalents or other similar rights of or with respect to the Issuer, or (e) obligations of the Issuer to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, options, equity equivalents, interests or rights. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than as contemplated by the Business Combination Agreement and the Transaction Agreements (as defined in the Business Combination Agreement). 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 Subscribed 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 of the Transactions.
2.2.9. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (i) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Subscribed Shares by the Issuer to Subscriber and (ii) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act and applicable state securities laws and filings required to consummate the Transactions as provided under the Business Combination Agreement.
(f) Neither 2.2.10. There are no pending or, to the knowledge of the Issuer, threatened, suits, claims, actions, or proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. There is no unsatisfied judgment or any open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.11. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to be material. The Issuer has not received any written communication from a governmental entity, exchange or self regulatory organization that alleges that the Issuer nor anyone acting on its behalf has offered 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, individually or in the Shares aggregate, be reasonably expected to be material.
2.2.12. The Issuer is not required to obtain any consent, waiver, authorization or order of, give any similar securities for sale notice to, or solicited make any offer 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 Subscribed Shares), other than (i) filings with the Commission, (ii) filings required by applicable state securities laws, (iii) filings required in accordance with Section 4, (iv) those required by the New York Stock Exchange (the “NYSE”) or Nasdaq, and (v) filings, the failure of which to buy obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.13. At Closing, the Issuer will be classified as a domestic corporation for U.S. federal income tax purposes.
2.2.14. The Issuer made available to Subscriber (including via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder and applicable to the SEC Documents. As of their respective dates, all SEC Documents required to be filed by the Issuer with the Commission prior to the date hereof complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder. None of the 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; provided that the Issuer makes no such representation or warranty with respect to the registration statement on Form S-4 to be filed by the Issuer with respect to the Transactions or any other information relating to 23andMe or any of its affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. There are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the same fromSEC Documents.
2.2.15. No broker, finder or otherwise approached other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or negotiated the transactions contemplated hereby in respect thereof withsuch a way as to create any liability on Subscriber.
2.2.16. The Issuer is not, any person other than and immediately after receipt of payment for the PIPE Investors and other Institutional Accredited InvestorsSubscribed Shares will not be, each an “investment company” within the meaning of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor Investment Company Act of 1940, as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Actamended.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing Date, as follows:
(a) 2.2.1. The Issuer is an exempted company has been duly incorporated, is validly existing and as a corporation in good standing under the laws of the Cayman Islands. The Issuer jurisdiction of its incorporation, has all the corporate power (corporate or otherwise) and authority to own, own or lease its property and operate its properties and to conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2. The Subscribed Shares will be duly authorized and, when issued and delivered to Subscriber against full payment for the Subscribed Shares, will be free and clear of any liens or other restrictions (bother than arising under applicable securities laws) At the Closing, subject to the receipt of the Subscription Amount in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Subscribed Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) constitutive agreements or the laws of the Cayman Islandsapplicable law.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the Investorvalid and binding obligation of the Issuer, and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4. The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Subscribed Shares and the consummation of the other 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is 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, taken as a whole or materially and adversely affects the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a an “Issuer Material Adverse Effect”), (ii) result in any material violation of the provisions of the organizational documents of the Issuer or (iii) any of its subsidiaries or 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Shares under the Securities Act.
2.2.6. Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Shares and neither the Issuer, nor any person acting on its behalf has offered any of the Subscribed Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of an aggregate of 6,508,376 shares of Common Stock for an aggregate purchase price of $11,650,000 (eincluding the Subscribed Shares purchased and sold under this Subscription Agreement ).
2.2.8. As of the date of this Subscription Agreement, the authorized share capital of the Issuer consists of 200,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, $0.001 par value per share (the “Preferred Stock”). The shares of Common Stock outstanding have been duly authorized and are validly issued, fully paid and non‑assessable. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer. 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 Subscribed 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.
2.2.9. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by 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 Subscribed Shares by the Issuer to Subscriber and no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act and applicable state securities laws.
(f) Neither 2.2.10. As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened, suits, claims, actions, or proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer nor anyone acting on its behalf has offered Material Adverse Effect. As of the Shares date hereof, there is no unsatisfied judgment or any similar securities for sale open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.11. The Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or solicited make any offer 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 Subscribed Shares), other than (i) filings with the Commission, (ii) filings required by applicable state securities laws, (iii) those required by The Nasdaq Stock Market LLC (“Nasdaq”) or another applicable stock exchange, and (iv) filings, the failure of which to buy obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.12. The Issuer made available to Subscriber (including via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder and applicable to the SEC Documents. As of their respective dates, all SEC Documents required to be filed by the Issuer with the Commission prior to the date hereof complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder. None of the 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. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the same fromSEC Documents.
2.2.13. No broker, finder or otherwise approached other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or negotiated the transactions contemplated hereby in respect thereof withsuch a way as to create any liability on Subscriber.
2.2.14. The Issuer is not, any person other than and immediately after receipt of payment for the PIPE Investors and other Institutional Accredited InvestorsSubscribed Shares will not be, each of which has been offered the Shares at a private sale for investment. required to register as an “Institutional Accredited Investorinvestment company” means an institutional accredited investor as such term is defined in Rule 501(a)(1)the Investment Company Act of 1940, (2), (3) or (7) under the Securities Actas amended.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) The Issuer is an exempted a company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has all , with corporate power (corporate 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) At the Closing, subject to the receipt The issue of the Subscription Amount Shares has been duly authorized and, when issued and to Subscriber against full payment for the Shares in accordance with the terms of this Subscription Agreement and registration on the Issuer’s memorandum and articles of association of the Issuer (as amended from time to time) and following the updates to the register of membersmembers of the Company in respect of such Shares in accordance with the Companies Act (As Revised) of the Cayman Islands, the Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paidnon-assessable, free and clear of any all liens or other encumbrances restrictions (other than those arising under this Agreement, the Business Combination Agreement or any applicable securities laws) and will not have been issued in violation of of, or subject to any preemptive or similar rights created under under, the Issuer’s organizational documents memorandum and articles of association (as in effect at such amended from time of issuanceto time) or under the laws Companies Act (As Revised) of the Cayman Islands.
(c) This Subscription Agreement has been duly authorized, authorized and validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes has been duly authorized, executed and delivered by Subscriber and Broadstone, shall constitute the valid and binding obligation of the Investor, Issuer and is enforceable against it 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 generally, and (ii) principles of equity, whether considered at law or equityequity (including concepts of materiality, reasonableness, good faith and fair dealing with respect to those jurisdictions that recognize such concepts).
(d) The issuance execution, delivery and sale performance of this Subscription Agreement by the Shares and the Issuer (including compliance by the Issuer with all of the provisions hereof) and the issuance and sale of this Subscription Agreement the Shares and the consummation of the certain other transactions contemplated herein, do not and will not (i) conflict with with, or result in a breach or violation of 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 upon, any of the property or assets of the Issuer or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries, as applicable, is a party or by which the Issuer or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of the Issuer or any of its subsidiaries, as applicable, is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries, as applicable, or (iii) result in any violation of any law, statute or any judgment, order, rule rule, regulation or regulation other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer Issuer, the Company or any of its their respective subsidiaries, as applicable, or any of their respective properties that that, in the case of clauses (i) and (iii), would reasonably be expected expected, individually or in the aggregate, to have a an Issuer Material Adverse Effect.
(e) Assuming the accuracy . For purposes of the Investor’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery of the Shares in the manner contemplated by this Subscription Agreement, no registration under an “Issuer Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to the Securities Act Issuer that has a material adverse effect on (x) the assets, business, stockholders’ or shareholders’ equity, results of 1933, as amended (the “Securities Act”) is required for the offer and sale operation or financial operations of the Shares by Issuer and its subsidiaries, taken as a whole (including the combined company after giving effect to the Transactions), (y) the validity of the Shares, or (z) the legal authority of the Issuer to the Investorenter into and timely perform its obligations under this Subscription Agreement.
(f) Neither the Issuer nor anyone acting on its behalf has offered the Shares or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
Appears in 1 contract
Samples: Business Combination Agreement (Broadstone Acquisition Corp.)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing Date, as follows:
(a) 2.2.1. The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has its jurisdiction of incorporation or formation, with all requisite power (corporate 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. As of the Closing Date, the Issuer will be duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(b) At 2.2.2. The Subscribed Shares will be duly authorized and, when issued and delivered to Subscriber against full payment for the ClosingSubscribed Shares, subject to the receipt will be free and clear of the Subscription Amount any liens or other restrictions whatsoever in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Subscribed Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) constitutive agreements or the laws of the Cayman Islandsapplicable law.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the InvestorSubscriber, is the valid and binding obligation of the Issuer, and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4. The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), the issuance and sale of this Subscription Agreement the Subscribed Shares, the transfer of the Transferred Sponsor Shares and the consummation of the other transactions contemplated herein, including the Transactions, 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 any indenture, mortgage, charge, 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 or any of its subsidiaries is 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 or the Company or their respective subsidiaries individually or taken as a whole and including the combined company after giving effect to the Transactions, or materially affects the validity or enforceability of the Subscribed Shares or Transferred Sponsor Shares] or the legal authority or other ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a collectively, an “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries 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 subsidiaries or any of its properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Shares or transfer of the Transferred Sponsor Shares under the Securities Act.
2.2.6. Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Shares or transfer of the Transferred Sponsor Shares and neither the Issuer, the Sponsor nor any person acting on its behalf has offered any of the Subscribed Shares or Transferred Sponsor Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7. Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for (i) the sale of an aggregate of [•] Common Shares for an aggregate purchase price of $[•] (including the Subscribed Shares purchased and sold under this Subscription Agreement) , and (ii) the transfer of an aggregate of [•] Class B Common Shares (including the Transferred Sponsor Shares transferred as set forth in this Subscription Agreement). The Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement. This Section 2.2.7 shall not apply to any purchase of any equity securities of the Issuer by the sponsor of the Issuer, or any of its affiliates.
2.2.8. As of the date of this Subscription Agreement and as of immediately prior to the Transactions, the authorized share capital of the Issuer consists of 200,000,000 Class A Ordinary Shares, 20,000,000 Class B Ordinary Shares and 1,000,000 preference shares, $0.0001 par value each. All issued and outstanding ordinary shares of the Issuer have been duly authorized and validly issued, are fully paid, non-assessable and are not subject to preemptive or similar rights. Except as set forth above and pursuant to the Other Subscription Agreements, the Business Combination Agreement, the Convertible Notes (as defined in the Business Combination Agreement), the Working Capital Loans (as defined in the Business Combination Agreement), there are no outstanding, and between the date hereof and the Closing, the Issuer will not issue, sell or cause to be outstanding any (a) shares, equity interests or voting securities of the Issuer, (b) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, (c) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to subscribe for, purchase or acquire from any individual, entity or other person, and no obligation of the Issuer to issue, any ordinary shares of the Issuer, or any other equity interests or voting securities in the Issuer or any securities convertible into or exchangeable or exercisable for such shares or other equity interests or voting securities, (d) equity equivalents or other similar rights of or with respect to the Issuer, or (e) obligations of the Issuer to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, options, equity equivalents, interests or rights. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than as contemplated by the Business Combination Agreement and the Ancillary Agreements (as defined in the Business Combination Agreement).
2.2.9. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (i) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Subscribed Shares by the Issuer, and the transfer of the Transferred Sponsor Shares by the Sponsor to Subscriber and (ii) no consent, approval, order, authorization of, or registration, qualification, designation, declaration or filing 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 and the Sponsor of this Subscription Agreement (including, without limitation, the issuance of the Subscribed Shares and transfer of the Transferred Sponsor Shares), except for those applicable filings (a) with the Commission, (b) required by applicable state securities laws, (c) required in accordance with Section 4, (d) required by the New York Stock Exchange (the “NYSE”) or NASDAQ Stock Exchange (“NASDAQ”), and (e) the failure of which to obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.10. There are no pending or, to the Investorknowledge of the Issuer, threatened, suits, claims, actions, or proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. There is no unsatisfied judgment or any open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
(f) Neither 2.2.11. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer Material Adverse Effect. The Issuer has not received any written communication from a governmental entity, exchange or self regulatory organization that alleges that the Issuer nor anyone acting on 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, individually or in the aggregate, be reasonably expected to have an Issuer Material Adverse Effect.
2.2.12. The Issuer made available to Subscriber (including via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder and applicable to the SEC Documents. As of their respective dates, subject to being supplemented or amended from time to time, all SEC Documents required to be filed by the Issuer with the Commission prior to the date hereof complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder. None of the 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. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its behalf has offered inception and through the Shares date hereof. There are no material outstanding or any similar securities for sale to, or solicited any offer unresolved comments in comment letters from the Commission staff with respect to buy any of the same fromSEC Documents.
2.2.13. No broker, finder or otherwise approached other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or negotiated the transactions contemplated hereby in respect thereof withsuch a way as to create any liability on Subscriber.
2.2.14. The Issuer is not, any person other than and immediately after receipt of payment for the PIPE Investors and other Institutional Accredited InvestorsSubscribed Shares will not be, each an “investment company” within the meaning of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor Investment Company Act of 1940, as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Actamended.
Appears in 1 contract
Samples: Subscription Agreement (Freedom Acquisition I Corp.)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the Investor date hereof and as of the Closing Date, as follows:
(a) 2.2.1. The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has , with all requisite power (corporate 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) At the Closing, subject to the receipt 2.2.2. As of the Subscription Amount Closing Date, the Subscribed Shares will be duly authorized and, when issued and delivered to Subscriber against full payment for the Subscribed Shares, will be free and clear of any liens or other restrictions whatsoever in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Subscribed Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents constitutive agreements (as in effect at such time of issuance) or the laws of the Cayman Islands.
(c) 2.2.3. This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the InvestorSubscriber, is the valid and binding obligation of the Issuer, and is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
(d) The issuance and sale 2.2.4. Assuming the accuracy of the Shares Subscriber’s representations and warranties in Section 2.1 hereof and New Pubco’s representation in Section 2.3 hereof, the compliance by the Issuer with all of the provisions execution, delivery and performance of this Subscription Agreement and the consummation issuance and sale of the transactions contemplated herein, Subscribed Shares 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the Issuer’s ability to consummate the issuance and sale of the Subscribed Shares (an “Issuer to enter into and timely perform its obligations under this Subscription 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 an Issuer Material Adverse Effect.
2.2.5. Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Shares and neither the Issuer, nor any person acting on its behalf has offered any of the Subscribed Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.6. As of the date of this Subscription Agreement and as of immediately prior to the Transactions, the authorized share capital of the Issuer consists of 200,000,000 Class A ordinary shares, 20,000,000 Class B ordinary shares and 1,000,000 preference shares, $0.0001 par value each. All issued and outstanding ordinary shares of the Issuer have been duly authorized and validly issued, and upon receipt of the Purchase Price for the Subscribed Shares, as fully paid, non-assessable and are not subject to preemptive or similar rights, except as set forth in the Business Combination Agreement. Except as set forth above and pursuant to the Other Subscription Agreements, the Business Combination Agreement, any other transaction agreement executed or to be executed in connection therewith or as may occur as a result of the transactions contemplated hereby and thereby, there are no outstanding, and between the date hereof and the Closing, the Issuer will not issue, sell or cause to be outstanding any (a) shares, equity interests or voting securities of the Issuer, (b) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, (c) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to subscribe for, purchase or acquire from any individual, entity or other person, and no obligation of the Issuer to issue, any ordinary shares of the Issuer, or any other equity interests or voting securities in the Issuer or any securities convertible into or exchangeable or exercisable for such shares or other equity interests or voting securities, (d) equity equivalents or other similar rights of or with respect to the Issuer, or (e) obligations of the Issuer to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, options, equity equivalents, interests or rights. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than as contemplated by the Business Combination Agreement, or any other transaction agreement executed or to be executed in connection therewith or as may occur as a result of the transactions contemplated hereby and thereby. There are no securities or instruments issued by or to which the Issuer is a party containing anti-dilution or similar provisions that have not been waived or annulled that will be triggered by the issuance of (i) the Subscribed 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 of the Transactions.
2.2.7. Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by 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 Subscribed Shares by the Issuer to the InvestorSubscriber.
2.2.8. Except for such matters as would not reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect, as of the date hereof there is no (fi) Neither suit, claim, action, or proceeding before any governmental authority or arbitrator pending or, to the knowledge of the Issuer, threatened, or (ii) unsatisfied judgment or any open injunction of any governmental authority or arbitrator outstanding against the Issuer.
2.2.9. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer Material Adverse Effect. As of the date hereof, the Issuer nor anyone acting on its behalf has offered not received any written communication from a governmental entity, exchange or self-regulatory organization that alleges that the Shares Issuer is not in compliance with or is in default or violation of any similar securities for sale applicable law, except where such non-compliance, default or violation would not, individually or in the aggregate, be reasonably expected to have an Issuer Material Adverse Effect.
2.2.10. The Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or solicited make any offer 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 Subscribed Shares), other than (i) filings with the United States Securities and Exchange Commission (the “Commission”), (ii) filings required by applicable state securities laws, (iii) those required by the Nasdaq Stock Market LLC (“Nasdaq”), (iv) filings required to buy consummate the Transactions as provided under the Business Combination Agreement, and (v) filings, the failure of which to obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.11. No broker, finder or other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on Subscriber.
2.2.12. The Issuer made available to Subscriber (including via the Commission’s XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder and applicable to the SEC Documents. As of their respective dates, all SEC Documents required to be filed by the Issuer with the Commission prior to the date hereof complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder. None of the 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; provided that the Issuer makes no such representation or warranty with respect to the registration statement on Form F-4 to be filed by the Issuer with respect to the Transactions or any other information relating to Semantix or any of its affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. There are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities ActSEC Documents.
Appears in 1 contract
Samples: Subscription Agreement (Alpha Capital Acquisition Co)
Issuer’s Representations, Warranties and Agreements. The Issuer hereby represents and warrants to the Investor such Subscriber and agrees with such Subscriber as follows:
(a) 2.2.1 The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a corporation in good standing under the laws of its jurisdiction of incorporation and following the Cayman Islands. The Issuer has all Domestication shall be validly existing as a corporation in good standing under the Delaware General Corporation Law (“DGCL”), with corporate power (corporate 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 Sponsor Subscription Agreement.
(b) At the Closing, subject to the 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, validly issued and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time of issuance) or the laws of the Cayman Islands.
(c) 2.2.2 This Sponsor Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the Investor, is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
2.2.3 Subject to obtaining all required approvals necessary in connection with the performance of the Merger Agreement (dincluding the approval of the Company’s stockholders for the Merger Agreement and the related Transactions including the transactions contemplated by this Sponsor Subscription Agreement, the Redemption Subscription Agreement, the PIPE Subscription Agreement, and the Other Subscription Agreements) The and any required applications and approvals pursuant to the applicable rules of Nasdaq (together, the “Required Approvals”) and assuming the accuracy of the Subscriber’s representation in Section 2.1.3, the execution, delivery and performance of this Sponsor Subscription Agreement, issuance and sale of the Shares and the compliance by the Issuer with all of the provisions of this Subscription Agreement and the consummation of the certain other transactions contemplated herein, 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 pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer (after Domestication) or (iiiii) result in any violation of any statute Law 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 on the validity of the Shares or the legal authority or ability of the Issuer to perform in all material respects its obligations under this Sponsor Subscription Agreement, subject to the exceptions in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an “Issuer Material Adverse Effect”).
(e) Assuming the accuracy 2.2.4 The issued and outstanding shares of Class A common stock of the Investor’s representations and warranties set forth in Issuer are registered pursuant to Section 4.2, in connection with the offer, sale and delivery 12(b) of the Shares in the manner contemplated by this Subscription Agreement, no registration under the Securities Exchange Act of 19331934, as amended (the “Securities Exchange Act”), and are listed for trading on Nasdaq. The Issuer has made available to such Subscriber (including via the Commission’s XXXXX system) is required for the offer a true, correct and sale complete copy of the Shares each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer (including the Merger Agreement) with the Commission prior to the Investor.
date of this Sponsor Subscription Agreement (f) Neither the “SEC Documents”), which SEC Documents, except in the case of the accounting treatment of the warrants, as of their respective filing dates, complied, as to form, in all material respects with the requirements of the Securities Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act and any rules and regulations promulgated thereunder applicable to the SEC Documents (in each case in effect as of the date of filing). None of the SEC Documents filed under the Exchange Act, contained, as of the respective date of its filing or, if amended prior to the date of this Sponsor Subscription Agreement or the Closing Date, 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 the light of the circumstances under which they were made, not misleading; provided that the Issuer nor anyone acting on its behalf has offered makes no such representation or warranty with respect to the Shares proxy statement/prospectus included in the PIPE Registration Statement to be filed in connection with the approval of the Merger Agreement by the stockholders of the Issuer (the “Proxy Statement/Prospectus”) or any similar securities for sale toother information relating to the Company or any of its Affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or solicited any offer unresolved comments in comment letters from the Commission staff with respect to buy any of the same fromSEC Documents.
2.2.5 As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened suits, claim, actions or otherwise approached or negotiated in respect thereof withproceedings (collectively, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1Actions”), (2)which, (3) if determined adversely, would, individually or (7) under in the Securities Actaggregate, reasonably be expected to have an Issuer Material Adverse Effect.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The Issuer hereby represents and warrants to the Investor as followsthat:
(a) The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a corporation in good standing under the laws of the Cayman IslandsDelaware General Corporate Law (“DGCL”). The Issuer has all corporate power (corporate or otherwise) and authority to own, lease and operate its properties and, subject to obtaining all required approvals necessary in connection with the performance of the Business Combination Agreement and the consummation of the Transactions (collectively, the “Required Approvals”), conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
(b) At the Closing, subject to the receipt As of the Subscription Amount Closing Date, the Acquired Shares will be duly authorized by the Issuer and, when issued and delivered to Subscriber against full payment for the Acquired Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of membersTransfer Agent, the Acquired Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paidnon-assessable, free and clear of any liens or and other encumbrances restrictions (other than those arising under this Subscription Agreement or applicable securities lawslaw) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time certificate of issuance) incorporation and bylaws or under the laws of the Cayman IslandsDGCL or otherwise.
(c) This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding agreement of Subscriber, is the valid and binding obligation of the InvestorIssuer, and is enforceable against it the Issuer in accordance with its terms, except as may be limited or otherwise affected by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally generally, and (ii) principles of equity, whether considered at law or equity.
(d) The issuance Subject to obtaining the Required Approvals, the execution, delivery and sale performance by the Issuer of the Shares and the this Subscription Agreement (including compliance by the Issuer with all of the provisions of this Subscription Agreement hereof), and the consummation issuance and sale by the Issuer of the transactions contemplated hereinAcquired Shares, 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 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 is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would be reasonably be expected likely to have have, individually or in the aggregate, a material adverse effect on the ability business, properties, financial condition, stockholders’ equity or results of operations of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “Material Adverse Effect”), ) or materially affect the validity of the Acquired Shares or the legal authority of the Issuer to comply in all material respects with the Issuer’s obligations under this Subscription Agreement; (ii) result in any violation of the provisions of the organizational documents of the Issuer 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 be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect or materially affect the validity of the Acquired Shares or the legal authority of the Issuer to comply in all material respects with the Issuer’s obligations under this Subscription Agreement.
(e) Other than the Issuer’s Class B common stock, par value $0.0001 per share (the “Class B Shares”), there are no securities or instruments issued by or to which the Issuer is a party containing anti-dilution provisions that will be expected 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; provided, that the holders of the Class B Shares will waive any such anti-dilution provisions in connection with the Transactions.
(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 the Issuer is now 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.
(eg) 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 Acquired Shares), other than (i) filings with the Securities and Exchange Commission (the “Commission”), (ii) filings required by applicable state securities laws, (iii) filings required in accordance with Section 10(q) of this Subscription Agreement; (iv) filings required by the NYSE, including with respect to obtaining stockholder approval of the Transactions; (v) filings set forth in Section 4.03 of the Business Combination Agreement, and (vi) any consent, waiver, authorization, order, notice or filing the failure of which to obtain or make would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.
(h) As of the date of this Subscription Agreement, the authorized capital stock of the Issuer consists of (i) 5,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Shares”), (ii) 500,000,000 Class A Shares, and (iii) 50,000,000 Class B Shares. As of the date of this Subscription Agreement: (A) no Preferred Shares are issued and outstanding, (B) 75,000,000 Class A Shares are issued and outstanding, (C) 18,750,000 Class B Shares are issued and outstanding, (D) 8,500,000 warrants to purchase 8,500,000 Existing Class A Shares (the “Private Placement Warrants”) are outstanding and (E) 18,750,000 warrants to purchase 18,750,000 Existing Class A Shares (the “Public Warrants”) are outstanding. All issued and outstanding Class A Shares and Class B Shares have been duly authorized and validly issued, and are fully paid and non-assessable. Except as set forth above and pursuant to the Other Subscription Agreements, the Business Combination Agreement and the other agreements and arrangements referred to therein, as of the date hereof and immediately prior to Closing, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any Class A Shares, Class B Shares or other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (1) as set forth in the SEC Documents (as defined below) and (2) as contemplated by the Business Combination Agreement and the other agreements and arrangements referred to therein.
(i) The Issuer has not received any written communication from a governmental 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 be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.
(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 the NYSE under the symbol “GSAH”. There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by the NYSE or the Commission, respectively, to prohibit or terminate the listing of the Class A Shares on the NYSE or to deregister the Class A Shares under the Exchange Act. 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 InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 4 of the Shares in the manner contemplated by 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 Acquired Shares by the Issuer to the InvestorSubscriber.
(fl) Neither the Issuer nor anyone any person acting on its behalf has offered or sold the Acquired Shares by any form of general solicitation or any similar securities for sale general advertising, including, but not limited to, the following: (1) any advertisement, article, notice or solicited other communication published in any offer to buy any of the same fromnewspaper, magazine, or otherwise approached similar media or negotiated in respect thereof with, any person other than the PIPE Investors and other Institutional Accredited Investors, each of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) broadcast over television or (7) under the Securities Act.radio;
Appears in 1 contract
Samples: Subscription Agreement (GS Acquisition Holdings Corp II)
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a corporation in good standing under the laws of the Cayman Islands. The Issuer has all Delaware General Corporation Law (“DGCL”), with corporate power (corporate 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) At 2.2.2 When issued and delivered to Subscriber against full payment for the Closing, subject to the receipt of the Subscription Amount Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorized, validly issued issued, fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents amended and restated certificate of incorporation (as in effect at such time of issuancethe “Charter”) or under the laws of the Cayman IslandsDGCL.
(c) 2.2.3 This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the Investorvalid and binding obligation of the Issuer, is enforceable against it 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 and (ii) principles of equity, whether considered at law or equity.
2.2.4 The Issuer is classified as a Subchapter C corporation for U.S. federal income tax purposes.
2.2.5 The execution, delivery and performance of this Subscription Agreement (d) The issuance and sale of the Shares and the including compliance by the Issuer with all of the provisions hereof), issuance and sale of this Subscription Agreement the Shares and the consummation of the certain other transactions contemplated hereinherein will not, will not subject to the receipt of the Buyer Stockholder Approval and the effectiveness of the Buyer A&R Charter Amendment, (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 pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have a material adverse effect on the ability legal authority of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (a “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.
2.2.6 Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares under the Securities Act.
2.2.7 Neither the Issuer nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Shares and neither the Issuer nor any person acting on its behalf offered any of the Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.8 [reserved]
2.2.9 As of the date of this Subscription Agreement, the authorized capital shares of the Issuer consists of (ea) 200,000,000 shares of Class A common stock, (b) 20,000,000 shares of Class B common stock, par value $0.0001 per share (“Class B common stock”); and (c) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Shares”). As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) 69,000,000 shares of Class A common stock are issued and outstanding; (iii) 17,250,000 shares of Class B common stock are issued and outstanding; (iv) 15,800,000 warrants to purchase 15,800,000 shares of Class A common stock (the “Private Placement Warrants”) are outstanding; and (v) 23,000,000 warrants to purchase 23,000,000 shares of Class A common stock (the “Public Warrants”) are outstanding. Subject to the receipt of the Buyer Stockholder Approval and the effectiveness of the Buyer A&R Charter Amendment, all (i) issued and outstanding shares of Class A common stock and Class B common stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding Private Placement Warrants and Public Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. Except as set forth above and pursuant to the Study Merger Agreement or the Magnet Merger Agreement and except for any Class A common stock or any warrants exercisable for shares of Class A common stock issued after the date hereof at a purchase price, or at an exercise price, as applicable, equal to or greater than ten dollars ($10.00) per share (before calculating any transaction expenses, original issue discounts or other similar premiums, charges and expenses that are customary for issuances of equity or equity-linked securities in connection with a private investment in a public company), there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any shares of Class A common stock or Class B common stock, or any other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, the Issuer has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Study Merger Agreement.
2.2.10 Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (x) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to Subscriber and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for (i) filings pursuant to Regulation D of the Securities Act and applicable state securities laws, (ii) filings required by the NYSE, including with respect to obtaining shareholder approval, (iii) filings required to consummate the Transactions as provided under the definitive documents relating to the Transactions and (iv) where the failure of which to obtain would not be reasonably likely to have an Issuer Material Adverse Effect.
2.2.11 The Issuer has made available to Subscriber (fincluding via the Securities and Exchange Commission’s (the “Commission”) Neither EXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer nor anyone acting on with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”). None of the 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. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its behalf has offered inception and through the Shares date hereof. As of the date hereof, there are no material outstanding or any similar securities for sale to, or solicited any offer unresolved comments in comment letters from the Commission staff with respect to buy any of the same fromSEC Documents.
2.2.12 As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened, claims, actions, suits, arbitrations, litigation or proceedings (“Actions”), which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement. As of the date hereof, there is no unsatisfied judgment or any open injunction binding upon the Issuer which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement.
2.2.13 No broker, finder or other financial consultant has acted on behalf of Issuer in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on Subscriber. The Issuer agrees to indemnify and hold harmless Subscriber from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of Issuer and to bear the cost of legal expenses incurred by Subscriber in defending against any such claim.
2.2.14 The execution, delivery and performance of its obligations hereunder by Subscriber are, or otherwise approached are based on, commercial acts for purposes of applicable law.
2.2.15 The Class A common stock of the Issuer is registered pursuant to Section 12(b) of the Exchange Act, and listed for trading on the New York Stock Exchange (“NYSE”). There is no suit, action, proceeding or negotiated in investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by the NYSE or the Commission with respect thereof with, to any person other than intention by such entity to deregister the PIPE Investors and other Institutional Accredited Investors, each Class A common stock or prohibit or terminate the listing of which the Class A common stock on the NYSE. The Issuer has been offered taken no action that is designed to terminate the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) registration of the Class A common stock under the Securities Exchange Act.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. The To induce Subscriber to purchase the Shares, each of the Cayman Issuer and New Pubco hereby represents represent and warrants warrant to the Investor Subscriber and agrees with Subscriber as follows:
(a) 2.2.1 The Cayman Issuer has been duly incorporated and is an exempted company duly incorporated, validly existing and as a company in good standing under the laws of the Cayman Islands. The Issuer has all , with corporate power (corporate 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) At 2.2.2 New Pubco has been duly incorporated and is validly existing as a corporation in good standing under the Closing, subject to the receipt 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 Amount Agreement.
2.2.3 The Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the Shares in accordance with the terms of this Subscription Agreement and registration on registered with the Issuer’s register of memberstransfer agent, the Shares will be duly authorizedvalidly issued, validly issued fully paid and allotted and fully paid, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s organizational documents (as in effect at such time amended and restated certificate of issuance) incorporation or under the laws of the Cayman IslandsDelaware General Corporation Law.
(c) 2.2.4 This Subscription Agreement has been duly authorized, validly executed and delivered by each of the Cayman Issuer and New Pubco and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the InvestorSubscriber, is the valid and binding obligation of each of the Cayman Issuer and New Pubco, is enforceable against it each of the Cayman Issuer, and New Pubco in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
2.2.5 The execution, delivery and performance of this Subscription Agreement (d) The including compliance by each of the Cayman Issuer and New Pubco with all of the provisions hereof), issuance and sale of the Shares and the compliance by the Issuer with all of the provisions of this Subscription Agreement and the consummation of the certain other transactions contemplated herein, 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 any of the Issuer Cayman Issuer, New Pubco or any of their respective subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which any of the Issuer Cayman Issuer, New Pubco or any of their respective subsidiaries is a party or by which any of the Issuer Cayman Issuer, New Pubco or any of their respective subsidiaries is bound or to which any of the property or assets of any of the Issuer Cayman Issuer, New Pubco or any of their respective subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ability of any of the Cayman Issuer or New Pubco to enter into and timely perform its their obligations under this Subscription Agreement (a “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of any of the Issuer Cayman Issuer, New Pubco or any of their respective subsidiaries 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 any of the Issuer Cayman Issuer, New Pubco or any of its their respective subsidiaries or any of their respective properties that would reasonably be expected to have a an Issuer Material Adverse Effect.
2.2.6 Neither the Cayman Issuer, New Pubco nor any person acting on their respective behalf has, directly or indirectly, made any offers or sales of any Issuer security or solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares under the Securities Act.
2.2.7 Neither the Cayman Issuer, New Pubco nor any person acting on their respective behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Shares and neither the Cayman Issuer, New Pubco nor any person acting on their respective behalf offered any of the Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.8 As of the date of this Subscription Agreement, the authorized capital shares of the Cayman Issuer consists of (ea) 200,000,000 Shares and (b) 2,000,000 shares of Preferred Shares, par value $0.0001 per share (“Preferred Shares”). As of immediately prior to the Closing, the authorized capital shares of New Pubco will consist of (i) 6,000,000,000 Class A Shares, (ii) 1,000,000 shares of Class B common stock, par value $0.0001 per share (“Class B Shares”) and 600,000,000 shares of preferred stock, par value $0.0001 per share. As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) 35,937,500 Ordinary Shares are issued and outstanding (“Existing Shares”); (iii) 7,750,000 warrants exercisable to purchase 7,750,000 Ordinary Shares (the “Private Placement Warrants”) are outstanding; and (v) 28,750,000 warrants exercisable to purchase 14,375,000 Ordinary Shares (the “Public Warrants”) are outstanding. All (i) issued and outstanding Existing Shares have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding Private Placement Warrants and Public Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. Except as set forth above and pursuant to the Other Subscription Agreements and the Transaction Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any Shares or any other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, other than, New Pubco, Purchaser Merger Sub and Blocker Merger Sub, the Cayman Issuer has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Transaction Agreement.
2.2.9 Assuming the accuracy of the InvestorSubscriber’s representations and warranties set forth in Section 4.2, in connection with the offer, sale and delivery 2.1 of the Shares in the manner contemplated by this Subscription Agreement, (x) no registration under the Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of the Shares by the Issuer to Subscriber and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local Governmental Authority is required on the Investorpart of the Issuer in connection with the consummation of the transactions contemplated by this Subscription Agreement, except for (i) filings pursuant to Regulation D of the Securities Act and applicable state securities laws, (ii) filings required by the NYSE, including with respect to obtaining shareholder approval, (iii) filings required to consummate the Transactions as provided under the definitive documents relating to the Transactions and (iv) where the failure of which to obtain would not be reasonably likely to have an Issuer Material Adverse Effect.
2.2.10 The Cayman Issuer has made available to Subscriber (fincluding via the Securities and Exchange Commission’s (the “Commission”) Neither XXXXX system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Cayman Issuer nor anyone acting on its behalf has offered with the Shares Commission prior to the date of this Subscription Agreement (the “SEC Documents”) which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents. None of the 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; provided, that the Cayman Issuer makes no such representation or warranty with respect to the proxy statement/prospectus to be filed by the Cayman Issuer and/or New Pubco with respect to the Transactions or any similar securities other information relating to FoA or any of its affiliates included in any SEC Document or filed as an exhibit thereto. The financial statements of the Cayman Issuer included in the SEC Documents comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of the Cayman Issuer as of and for sale tothe dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments. The Cayman Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Cayman Issuer was required to file with the Commission since its inception and through the date hereof. As of the date hereof, there are no material outstanding or solicited any offer unresolved comments in comment letters from the Commission staff with respect to buy any of the same fromSEC Documents.
2.2.11 No broker, finder or other financial consultant has acted on behalf of the Cayman Issuer or New Pubco in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Subscriber. Each of the Cayman Issuer and New Pubco agrees to indemnify and hold harmless Subscriber from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of the Cayman Issuer or New Pubco and to bear the cost of legal expenses incurred by Subscriber in defending against any such claim.
2.2.12 The execution, delivery and performance of its obligations hereunder by Subscriber are, or otherwise approached are based on, commercial acts for purposes of applicable law.
2.2.13 The Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act, and listed for trading on the NYSE. There is no suit, action, proceeding or negotiated investigation pending or, to the knowledge of the Cayman Issuer or New Pubco, threatened against the Cayman Issuer or New Pubco by the NYSE or the Commission with respect to any intention by such entity to deregister the Ordinary Shares or prohibit or terminate the listing of the Ordinary Shares on the NYSE. Neither the Cayman Issuer or New Pubco has taken any action that is designed to terminate the registration of the Shares under the Exchange Act.
2.2.14 As of the date hereof, there are no pending or, to the knowledge of the Issuer, threatened actions, which, if determined adversely, would, individually or in respect thereof withthe aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement. As of the date hereof, there is no unsatisfied judgment or any person open injunction binding upon the Issuer which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuer to enter into and perform its obligations under this Subscription Agreement.
2.2.15 The Issuer has not entered into any subscription agreement, side letter or similar agreement with any Other Subscriber or any other investor in connection with such Other Subscriber’s or investor’s direct or indirect investment in the Issuer other than (i) the PIPE Investors Transaction Agreement and other Institutional Accredited Investors, each (ii) the Other Subscription Agreements. No Other Subscription Agreement includes terms and conditions that are materially more advantageous to any such Other Subscriber than Subscriber hereunder. The Other Subscription Agreements have not been amended in any material respect following the date of which has been offered the Shares at a private sale for investment. “Institutional Accredited Investor” means an institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Actthis Subscription Agreement.
Appears in 1 contract
Samples: Subscription Agreement (Finance of America Companies Inc.)
