Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows: 2.2.1 The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”), with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. 2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate of incorporation or under the DGCL. 2.2.3 This Subscription Agreement has been duly authorized, executed and delivered by 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. 2.2.4 The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain 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 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (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 an Issuer Material Adverse Effect. 2.2.5 The authorized capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 shares of common stock, par value $0.0001 per share, and (ii) 1,000,000 shares of preferred stock, par value $0.0001 per share. 2.2.6 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber. 2.2.7 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 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 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 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 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. 2.2.8 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. 2.2.9 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. 2.2.10 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 (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 to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Act.
Appears in 3 contracts
Samples: Subscription Agreement (Property Solutions Acquisition Corp.), Subscription Agreement (Property Solutions Acquisition Corp.), Subscription Agreement (Property Solutions Acquisition Corp.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 The Issuer has been is a corporation duly incorporated and is organized, validly existing as a corporation and in good standing under the laws of the Delaware General Corporation Law (“DGCL”)State of Israel, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate articles of incorporation association or under the DGCLLaws of the State of Israel.
2.2.3 This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and is enforceable against it 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 affecting generally the enforcement of creditors’ rights and subject to or affecting the rights of creditors generally and (ii) general principles of equity, whether considered at law or equity.
2.2.4 The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain 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 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses Agreement (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an 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 an Issuer Material Adverse Effect.
2.2.5 The As of the date of this Subscription Agreement, the authorized capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 204,870,390 ordinary shares of common stock, no par value $0.0001 per share, (“Existing Ordinary Shares”) and (iii) 95,129,610 preferred shares of no par value (“Preferred Shares”). As of the date hereof: (i) 19,280,691 Existing Ordinary Shares are issued and outstanding and (ii) 1,000,000 80,038,346 Preferred Shares are issued and outstanding (consisting of (a) 23,255,810 series A convertible preferred shares of the Issuer, no par value, (b) 18,116,580 series B convertible preferred stockshares of the Issuer, no par value, (c) 3,454,440 series B-1 convertible preferred shares of the Issuer, no par value, (d) 32,137,295 series C convertible preferred shares of the Issuer, no par value $0.0001 per shareand (e) 3,074,221 series C-1 convertible preferred shares of the Issuer, no par value).
2.2.6 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 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 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 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 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 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.
2.2.8 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.
2.2.9 2.2.8 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.
2.2.10 2.2.9 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 (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 to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Act.
Appears in 3 contracts
Samples: Subscription Agreement (Innoviz Technologies Ltd.), Subscription Agreement (Collective Growth Corp), Put Option Agreement (Collective Growth Corp)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber Subscriber, as of the date hereof and as of the Closing, as follows:
2.2.1 The Issuer has been is a corporation duly incorporated organized and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”)State of Israel, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be 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 amended and restated certificate articles of incorporation association or under similar constitutive agreements or the DGCLLaws of the State of Israel.
2.2.3 This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes a valid and binding obligation of the other 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.
2.2.4 The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of 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, in each case, which would reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (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, 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 an Issuer Material Adverse Effect.
2.2.5 The 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 Other Subscription Agreements 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 terminate prior to the Closing Date.
2.2.6 As of the date of this Subscription Agreement, the authorized capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 shares 65,366,595 Ordinary Shares of common stock, no par value $0.0001 per share, (“Existing Ordinary Shares”) and (ii) 1,000,000 45,688,037 preferred shares of preferred stock, no par value $0.0001 per share(“Preferred Shares”). As of the date of this Subscription 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) 6,464,881 series C convertible preferred shares of the Issuer, no par value, (f) 6,289,727 series D convertible preferred shares of the Issuer, no par value, and (g) 13,428,728 series E convertible preferred shares of the Issuer, no par value). As of the Closing, the Preferred Shares in (ii) will be converted to Ordinary Shares.
2.2.6 2.2.7 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 2.1 of this Subscription Agreement, no registration under the Securities Act and no prospectus approved under the Securities Law is required for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 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 2.2.8 Neither 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 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 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 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.
2.2.8 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.
2.2.9 Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any securities of Issuer security or solicited any offers to buy any security 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 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) Act or (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 to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities ActLaw.
Appears in 3 contracts
Samples: Subscription Agreement (Taboola.com Ltd.), Subscription Agreement (Taboola.com Ltd.), Subscription Agreement (ION Acquisition Corp 1 Ltd.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the The Issuer hereby represents and warrants to Subscriber the Purchasers and the Sellers and agrees with Subscriber the Purchasers and the Sellers, as of the date hereof and as of the Closing, as follows:
2.2.1 2.3.1 The Issuer has been is a corporation duly incorporated organized and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”)State of Israel, 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 Share Purchase Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate of incorporation or under the DGCL.
2.2.3 2.3.2 This Subscription Share Purchase Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Share Purchase Agreement constitutes a valid and binding obligation of the other 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.
2.2.4 2.3.3 The execution, delivery and performance of this Subscription Share Purchase Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of 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, in each case, which would reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and perform in all material respects its obligations under the Merger this Share Purchase Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an 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 an Issuer Material Adverse Effect.
2.2.5 The authorized 2.3.4 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 Institutional Share Purchase Agreement or (iii) any shares of capital shares stock of the Issuer immediately 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 consists Date.
2.3.5 Concurrently with the execution and delivery of this Share Purchase Agreement, the Issuer is entering into (i) 50,000,000 shares of common stock, par value $0.0001 per share, and separate subscription agreements with certain other “qualified institutional buyers” (ii) 1,000,000 shares of preferred stock, par value $0.0001 per share.
2.2.6 Assuming the accuracy of Subscriber’s representations and warranties set forth as defined in Section 2.1 of this Subscription Agreement, no registration Rule 144A under the Securities Act is required for Act) or “accredited investors” (within the offer meaning of Rule 501(a) under the Securities Act) (“Primary Subscribers”) pursuant to which each such Primary Subscriber has agreed to purchase Issuer’s ordinary shares at the Closing at the same per share purchase price as the Purchasers hereunder, and sale the aggregate amount of the Shares securities to be sold by the Issuer to Subscriber.
2.2.7 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 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 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 AgreementPrimary Subscribers equals, as of the date hereof, thirteen million five hundred thousand (13,500,000) Ordinary Shares (the “Primary Subscription Agreements”), (ii) the Institutional Share Purchase Agreement and (iii) the Secondary Side Letter. Other than the Primary Subscription Agreements, the Other Institutional Share Purchase Agreement, the Secondary Side Letter, the Merger Agreement, the Investors’ Rights Agreement and any other agreement contemplated by the Merger Agreement, neither the Company nor the Issuer has entered into any side letter or similar agreement with any other investor (including any Other Seller) in connection with such investor’s direct or indirect investment in the Issuer (other than any side letter or similar agreement relating to the transfer to any investor of such amendment with respect (a) securities of the Issuer by existing securityholders of the Issuer, which may be effectuated as a forfeiture to those disclosures that are amended, any untrue statement of a material fact the Issuer and reissuance or omitted to state a material fact required (b) securities to be stated therein issued to the direct or necessary to make the statements therein, in the light indirect securityholders of the circumstances under which they were made, not misleading; provided that the Issuer makes no such representation or warranty with respect pursuant to the proxy statement/prospectus included in the Registration Statement to Merger Agreement). Except as may be filed required by applicable law or regulatory requirements in connection with the approval of Closing, the Merger Institutional Share Purchase Agreement by (as may be amended in accordance with its terms) does not include terms and conditions that are materially more advantageous to any such Other Sellers or Other Purchasers than the stockholders of Sellers and Purchasers hereunder, as applicable, and the Issuer (the “Proxy Statement/Prospectus”) Institutional Share Purchase Agreement has not been amended or any other information relating to the Company or any of its affiliates included modified 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 material respect following the date hereof. of this Share Purchase Agreement.
2.3.6 As of the date hereofClosing, there the Issuer’s Ordinary Shares will be registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE or The Nasdaq Stock Market (“NASDAQ”) under the symbol “TBLA”. There is no material outstanding suit, action, proceeding or unresolved comments in comment letters from investigation pending or to the knowledge of the Issuer, threatened against the Issuer by the NYSE, NASDAQ or the Commission staff with respect to any intention by such entity to deregister the Ordinary Shares or prohibit or terminate the listing of Ordinary Shares on the SEC DocumentsNYSE or NASDAQ.
2.2.8 The 2.3.7 Other than the Placement Agents, Issuer has provided Subscriber an opportunity to ask questions regarding the Issuer represents and made available to Subscriber all the information reasonably available warrants to the Issuer other parties hereto that Subscriber no broker, finder or other financial consultant has reasonably requested to make an investment decision with respect to the Shares.
2.2.9 Neither the Issuer, nor any person acting acted on its behalf has, directly in connection with this Share Purchase Agreement 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 in such a way as to create any liability on any other parties hereto.
2.3.8 Issuer is not currently (and at all times through Closing will refrain from being or would require registration becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the issuance Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the Shares under Company (within 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 meaning of Rule 506(d)(2)(ii)-(iv) or (d)(313d-5(b)(1) under the Securities Act is applicable. Exchange Act).
2.3.9 The Issuer has complied, Shares to be issued to the extent applicable, with any disclosure obligations under Rule 506(e) under the Securities Act. “Issuer Covered Person” means, with respect Purchasers pursuant to the Issuer as an “issuer” for purposes terms and conditions of Rule 506 under the Securities Act, this Share Purchase Agreement will not be subject to any person listed in the first paragraph of Rule 506(d)(1) under the Securities Act‘lock up’ restrictions.
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. To induce Subscriber to purchase the Shares, the The Issuer hereby represents and warrants to Subscriber Transferors and agrees with Subscriber Transferors as follows:
2.2.1 4.2.1 The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law of the State of Delaware (“DGCL”), with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate of incorporation or under the DGCL.
2.2.3 4.2.2 This Subscription Agreement has been duly authorized, executed and delivered by 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.
2.2.4 4.2.3 The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance will be done in accordance with Nasdaq rules and sale of the Shares and the consummation of the certain 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 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and perform in all material respects its obligations under the Merger this Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (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 an Issuer Material Adverse Effect.
2.2.5 The authorized capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 shares of common stock, par value $0.0001 per share, and (ii) 1,000,000 shares of preferred stock, par value $0.0001 per share.
2.2.6 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 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 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 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 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 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.
2.2.8 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.
2.2.9 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.
2.2.10 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 (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 to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Act.
Appears in 2 contracts
Samples: Transferor Agreement (Blackstone Products, Inc.), Transferor Agreement (ACKRELL SPAC Partners I Co.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the The Issuer hereby represents and warrants to Subscriber and agrees with Subscriber the Investor as follows:
2.2.1 (a) The Issuer has been is an exempted company duly incorporated and is incorporated, validly existing as a corporation and in good standing under the laws of the Delaware General Corporation Law Cayman Islands. The Issuer has all power (“DGCL”), with corporate power or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 The Shares have been duly authorized and(b) At the Closing, when issued and delivered subject to Subscriber against full payment for the Shares receipt of the Subscription Amount in accordance with the terms of this Subscription Agreement and registered with registration on the Issuer’s transfer agentregister of members, the Shares will be duly authorized, validly issuedissued and allotted and fully paid, fully paid free and non-assessable 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 amended and restated certificate organizational documents (as in effect at such time of incorporation issuance) or under the DGCLlaws of the Cayman Islands.
2.2.3 (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.
2.2.4 (d) The execution, delivery issuance and performance sale of this Subscription Agreement (including the Shares and the compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and timely perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses Agreement (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an 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 an Issuer a Material Adverse Effect.
2.2.5 The authorized capital shares of the Issuer immediately prior to the Closing consists of (ie) 50,000,000 shares of common stock, par value $0.0001 per share, and (ii) 1,000,000 shares of preferred stock, par value $0.0001 per share.
2.2.6 Assuming the accuracy of Subscriberthe Investor’s representations and warranties set forth in Section 2.1 5.2, 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 Subscriberthe Investor.
2.2.7 The Issuer has made available to Subscriber (including via the Commission’s XXXXX systemf) a true, correct and complete copy None of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with nor any of its affiliates has offered the Commission Shares or any similar securities during the six months prior to the date of this Subscription Agreement (hereof to anyone other than 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 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 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 theretoPIPE Investors. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that no intention to offer the Issuer was required to file with Shares or any similar security during the Commission since its inception and through six months from 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.
2.2.8 The Issuer has provided Subscriber an opportunity to ask questions regarding (g) Neither 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.
2.2.9 Neither the Issuer, nor any person acting on its behalf hashas offered or sold the Shares by any form of general solicitation or general advertising, directly including, but not limited to, the following: (i) any advertisement, article, notice or indirectlyother communication published in any newspaper, made magazine, or similar media or broadcast over television or radio; (ii) any offers website posting or sales of widely distributed e-mail; or (iii) any Issuer security seminar or solicited meeting whose attendees have been invited by any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) general solicitation or general advertising. None of the Securities Act for Issuer, its subsidiaries or their respective affiliates or any person acting on its or their behalf have engaged in any “directed selling efforts” within the exemption from registration for the transactions contemplated hereby or would require registration meaning of the issuance Rule 903 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 (d)(3) Regulation S under the Securities Act is applicable. The in connection with the execution of this Agreement.
(h) Other than Credit Suisse Securities (USA) LLC (“Credit Suisse”) or Deutsche Bank AG, Hong Kong Branch (together with Credit Suisse, the “Placement Agents”), the Issuer has compliednot dealt with any broker, finder, commission agent, placement agent or arranger in connection with the sale of the Shares and the transactions contemplated by this Subscription Agreement (the “Subscription”) and the other Subscription Agreements, and the Issuer is not under any obligation to pay any broker’s fee or commission in connection with such transactions other than to the extent applicable, with any disclosure obligations under Rule 506(e) under the Securities ActPlacement Agents. “Issuer Covered Person” means, with respect to Neither the Issuer as an “issuer” for purposes nor any of Rule 506 under its affiliates nor any other person acting on its behalf (other than its officers acting in such capacity) has solicited offers for, or offered or sold, the Securities ActShares through any broker, any person listed in finder, commission agent, placement agent or arranger other than the first paragraph of Rule 506(d)(1) under the Securities ActPlacement Agents.
Appears in 2 contracts
Samples: Subscription Agreement (Lotus Technology Inc.), Subscription Agreement (Lotus Technology Inc.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”), with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agentAgreement, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate of incorporation or under the DGCL.
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 Subscriber, is the 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.
2.2.4 The execution, delivery and performance by the Issuer of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain other transactions contemplated herein do not and 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and timely perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (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 an Issuer Material Adverse Effect.
2.2.5 Assuming the accuracy of the representations and warranties of Subscriber, 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 (including the NYSE (as defined below)) or other person in connection with the execution, delivery and performance of this Subscription Agreement (including, without limitation, the issuance of the Shares), other than (i) filings required by applicable state securities laws, (ii) the filing of the Registration Statement pursuant to Section 4 below, (iii) the filing of a Notice of Exempt Offering of Securities on Form D with the Commission under Regulation D of the Securities Act, if applicable, (iv) those required by The New York Stock Exchange (the “NYSE”), including with respect to obtaining stockholder approval, (v) those required to consummate the Transactions as provided under the Merger Agreement, (iii) the filings required in accordance with Section 7.24 of this Subscription Agreement and (vi) the failure of which to obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.6 The authorized capital shares of the Issuer as of the date of this Subscription Agreement and as of immediately prior to the Closing consists of (i) 50,000,000 75,000,000 shares of Class A common stock (“Existing Class A Shares”); (ii) 10,000,000 shares of Class B convertible common stock, par value $0.0001 per shareshare (“Existing Class B Shares” and together with the Existing Class A Shares, the “Common Stock”); and (iiiii) 1,000,000 shares of preferred stock, par value $0.0001 per shareshare (“Preferred Shares”). As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) 1,026,255 Existing Class A Shares are issued and outstanding (excluding 16,223,745 Existing Class A Shares subject to possible redemption); (iii) 4,312,500 Existing Class B Shares are issued and outstanding; (iv) 13,825,000 warrants, each exercisable to purchase one Existing Class A Share at $11.50 per share are outstanding, including 5,200,000 private placement warrants (together, the “Warrants”); and (v) no shares of Common Stock are subject to issuance upon exercise of outstanding options. No Warrants are exercisable on or prior to the Closing. All (A) issued and outstanding Common Stock has been duly authorized and validly issued, is fully paid and non-assessable and is not subject to preemptive rights and (B) 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 (x) set forth above or (y) pursuant to this Subscription Agreement and the Other Subscription Agreements or the Merger Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any Common Stock or other equity interests in the Issuer (collectively, “Equity Interests”) or securities convertible into or exchangeable or exercisable for 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 Equity Interests, other than as contemplated by the Other Subscription Agreements and the Merger 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 Shares or (II) the shares to be issued pursuant to any Other Subscription Agreement.
2.2.6 2.2.7 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 2.2.8 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 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 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 the light of the circumstances under which they were made, not misleading; provided provided, that the Issuer makes no such representation or warranty with respect to the proxy statement/prospectus included in as part of the Registration Statement registration statement on Form S-4 of the Issuer to be filed in connection with the approval issuance of Class A common stock to the Company’s stockholders in the Merger and adoption of the Merger Agreement by the stockholders shareholders 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 financial statements of the 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 Issuer as of and for the 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. A copy of each SEC Document is available to the Subscriber via the Commission’s XXXXX system. 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.
2.2.8 2.2.9 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.
2.2.9 2.2.10 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.
2.2.10 No Disqualification Event is applicable 2.2.11 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 the Other Subscription Agreements. The Other Subscription Agreements reflect the same per share purchase price as this Subscription Agreement and do not include terms or conditions that are more advantageous to any Other Subscriber or any other investor compared to the Issuer terms and conditions of the Subscriber as set forth in this Subscription Agreement and the Other Subscription Agreements shall not be amended after the date hereof to provide for terms with respect to the purchase of shares that are more favorable to such Other Subscriber or such other investor thereunder than the terms of this Subscription Agreement, unless such terms are also offered to the Subscriber.
2.2.12 As of the date hereof, the Existing Class A Shares are registered pursuant to Section 12(b) of the Exchange Act, and are listed for trading on the NYSE under the symbol “DFNS.” 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 Existing Class A Shares or prohibit or terminate the listing of the Existing Class A Shares on the NYSE excluding, for the purposes of clarity, the customary ongoing review by the NYSE of the Issuer’s knowledgelisting application with respect to the Shares in connection with the Transactions. The Issuer has taken no action that is designed to terminate the registration of the Existing Class A Shares under the Exchange Act. Upon consummation of the Transactions, any the issued and outstanding Class A common stock, including the Shares, will be registered pursuant to Section 12(b) of the Exchange Act and will be listed for trading on the NYSE. The Issuer Covered Person (as defined below)has taken no action that is designed to terminate the registration of the Class A common stock of the Issuer under the Exchange Act or the listing of the Class A common stock of the Issuer on the NYSE.
2.2.13 The Issuer is in compliance with all applicable laws, except where such noncompliance would not reasonably be expected to have an Issuer Material Adverse Effect. 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.
2.2.14 Except for such matters as have not had and would not be reasonably likely to have an Issuer Material Adverse Effect, there is no (i) suit, action, claim or other proceeding or arbitration before a Disqualification Event as governmental authority or arbitrator pending, or, to which Rule 506(d)(2)(ii)-(iv) the knowledge of the Issuer, threatened in writing against the Issuer or (d)(3ii) judgment, decree, injunction, ruling or order of any governmental authority or arbitrator outstanding against the Issuer or any of its subsidiaries.
2.2.15 The Issuer acknowledges and agrees that, notwithstanding anything herein to the contrary, the Shares may be pledged by the 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, a registration statement that is effective under the Securities Act is applicable. at the time of such pledge, and Subscriber effecting a pledge of Shares shall not be required to provide the Issuer with any notice thereof; provided, however, that neither the Issuer or their counsel shall 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 review and comment by the Issuer in all respects.
2.2.16 The Issuer has compliedis not, to and immediately after receipt of payment for the extent applicableShares and consummation of the Transactions, with any disclosure obligations under Rule 506(e) under the Securities Act. “Issuer Covered Person” meanswill not be, with respect to the Issuer as an “issuerinvestment company” for purposes within the meaning of Rule 506 under the Securities ActInvestment Company Act of 1940, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Actas amended.
Appears in 2 contracts
Samples: Subscription Agreement (LGL Systems Acquisition Corp.), Merger Agreement (LGL Systems Acquisition Corp.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the SharesConvertible Notes, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”), 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 Convertible Note Subscription Agreement.
2.2.2 The Shares As of the time of Closing, the Indenture (as defined in Annex A attached hereto) will have been duly executed and delivered by the Issuer and (assuming the due execution and delivery thereof by the trustee) will be, and the Convertible Notes will have been, duly authorized by the Issuer and, when issued and delivered to Subscriber against full payment for the Shares Convertible Notes in accordance with the terms of this Convertible Note Subscription Agreement Agreement, will be the legal, valid and registered binding obligation of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be subject to or limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally, (ii) the applicability or effect of any fraudulent transfer, preference or similar law, (iii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law) or (iv) the effect of general rules of contract law that limit the enforceability of provisions requiring indemnification of a party for liability for its own action or inaction to the extent the action or inaction involves gross negligence, recklessness, willful misconduct or unlawful conduct.
2.2.3 The Convertible Notes (when issued by the Issuer, authenticated in accordance with the Issuer’s transfer agentterms of the Indenture and delivered to and paid for by Subscriber) will be entitled to the benefits of the Indenture, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the Shares enforcement of creditors’ rights generally, (ii) the applicability or effect of any fraudulent transfer, preference or similar law, (iii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law) or (iv) the effect of general rules of contract law that limit the enforceability of provisions requiring indemnification of a party for liability for its own action or inaction to the extent the action or inaction involves gross negligence, recklessness, willful misconduct or unlawful conduct. The shares of Common Stock issuable upon conversion of the Convertible Notes, when issued in accordance with the terms of the Convertible Notes, 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.
2.2.3 2.2.4 This Convertible Note Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer Issuer, and, assuming that this Convertible Note Subscription Agreement constitutes the valid and binding obligation of Subscriber, 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 similar laws now or hereafter in effect relating to or affecting the enforcement of creditors’ rights of creditors generally and generally, (ii) the applicability or effect of any fraudulent transfer, preference or similar law, (iii) general principles of equityequity (regardless of whether such enforcement is considered in a proceeding in equity or at law) or (iv) the effect of general rules of contract law that limit the enforceability of provisions requiring indemnification of a party for liability for its own action or inaction to the extent the action or inaction involves gross negligence, whether considered at law recklessness, willful misconduct or equityunlawful conduct.
2.2.4 2.2.5 The Issuer is classified as a Subchapter C corporation for U.S. federal income tax purposes.
2.2.6 The execution, delivery and performance of this Convertible Note Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares Convertible Notes and the consummation of the certain 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, 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, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and timely perform in all material respects its obligations under the Merger this Convertible Note Subscription Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an 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 Issuer, any of its subsidiaries or any of its properties that would reasonably be expected to have an Issuer Material Adverse Effect.
2.2.5 The 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 Convertible Notes 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 Convertible Notes and neither the Issuer nor any person acting on its behalf offered any of the Convertible Notes 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 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 $1.3 billion aggregate principal amount of Convertible Notes (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 Other 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 Subscriber (as compared to Subscriber) other than such PIPE Agreements containing an ability in certain circumstances to fund the purchase price on the Closing Date rather than two (2) Business Days prior to the Expected Closing Date if State Street Bank is not serving as escrow agent with respect to the purchase price from such Other Subscriber.
2.2.10 As of the date of this Convertible Note Subscription Agreement, the authorized capital shares of the Issuer immediately prior to the Closing consists of (ia) 50,000,000 250,000,000 shares of Class A common stock, par value $0.0001 per shareshare (“Existing Class A Shares”); (b) 50,000,000 shares of Class B common stock, par value $0.0001 per share (“Existing Class B Shares”); and (iic) 1,000,000 shares of preferred stock, par value $0.0001 per shareshare (“Existing Preferred Shares”). As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) 110,000,000 Existing Class A Shares 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 Existing Class A Shares (the “Private Placement Warrants”) are outstanding; and (v) 27,500,000 warrants to purchase 27,500,000 Existing Class A Shares (the “Public Warrants”) are outstanding. All (i) 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 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 Common Stock 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 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 (as defined below) and (B) as contemplated by the Merger Agreement.
2.2.6 2.2.11 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Convertible Note Subscription Agreement, (x) no registration under the Securities Act is required for the offer and sale of the Shares Convertible Notes by the Issuer to SubscriberSubscriber and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state of local Governmental Authority is required on the part of the Issuer in connection with the consummation of the transactions contemplated by this Convertible Note Subscription Agreement, except for filings pursuant to Regulation D of the Securities Act and applicable securities laws.
2.2.7 2.2.12 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 with the Commission prior to the date of this Convertible Note 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 Convertible Note 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; provided misleading; provided, that the Issuer makes no such representation or warranty with respect to the proxy statement/prospectus included in the Registration Statement statement to be filed in connection with the approval of the Merger Agreement by the stockholders of Issuer with respect to the Issuer (the “Proxy Statement/Prospectus”) Transactions or any other information relating to the Company 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 unresolved comments in comment letters from the Commission staff with respect to any of the SEC Documents.
2.2.8 The Issuer has provided Subscriber an opportunity to ask questions regarding 2.2.13 As of the Issuer and made available to Subscriber all the information reasonably available date hereof, there are no pending or, to the Issuer that Subscriber has reasonably requested to make an investment decision with respect to the Shares.
2.2.9 Neither knowledge of the Issuer, nor 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 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 open injunction binding upon the Issuer which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
2.2.14 No broker, finder or other financial consultant has acted on Section 4(a)(2) behalf of the Securities Act for the exemption from registration for Issuer in connection with this Convertible Note Subscription Agreement or the transactions contemplated hereby or would require registration in such a way as to create any liability on Subscriber.
2.2.15 After the nine (9) month anniversary of the issuance Closing Date, if requested by Subscriber, upon reasonable notice, the Issuer shall use commercially reasonable efforts for a period not to exceed two (2) Business Days in the aggregate to assist Subscriber in completing any sale process undertaken in connection with the private resale of the Shares under the Securities Act.
2.2.10 No Disqualification Event is applicable to the Issuer or, to the Issuer’s knowledge, Convertible Notes or any Issuer Covered Person (as defined below), except for a Disqualification Event as to which Rule 506(d)(2)(ii)-(iv) or (d)(3) portion thereof without registration under the Securities Act is applicable. The by: (i) providing direct telephonic contact between senior management and a limited number of prospective purchasers; and (ii) responding to inquiries of, and providing answers to, a limited number of prospective purchasers; provided that all reasonable and documented out-of-pocket third-party expenses and costs incurred by the Issuer has complied, and its subsidiaries relating to the extent applicableprovision of such assistance shall be paid by Subscriber; and provided, with any disclosure obligations further, that such assistance shall only be provided during the Issuer’s “open windows” under Rule 506(e) under the Securities Act. “Issuer Covered Person” means, with respect to its xxxxxxx xxxxxxx policy and shall not require the Issuer as or any of its subsidiaries to (x) prepare an “issuer” for purposes of Rule 506 under the Securities Act, offering memorandum or a similar disclosure documentation or (y) disclose any person listed in the first paragraph of Rule 506(d)(1) under the Securities Actmaterial non-public information to any prospective purchaser.
Appears in 1 contract
Samples: Convertible Note Subscription Agreement (Churchill Capital Corp III)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 The Issuer has been is a corporation duly incorporated organized and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”)State of Israel, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be 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 amended and restated certificate articles of incorporation association or under similar constitutive agreements or the DGCLLaws of the State of Israel.
2.2.3 This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes a valid and binding obligation of the other 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.
2.2.4 The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of 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, in each case, which would reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and perform in all material respects its obligations under the Merger this Subscription Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of have a Company Material Adverse Effect (as defined in the Merger Agreement mutatis mutandis Business Combination Agreement) (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, 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 an Issuer Material Adverse Effect.
2.2.5 The 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 (i) the Shares, (ii) any Ordinary Shares to be issued pursuant to the Other Subscription Agreements 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 terminate prior to the Closing Date.
2.2.6 As of the date of this Subscription Agreement, the authorized capital shares of the Issuer immediately prior to the Closing consists consist of (i) 50,000,000 shares of common stock144,460,656 Ordinary Shares, par value $0.0001 NIS 0.01 per share (“Existing Ordinary Shares”), and (ii) 107,943,829 preferred shares, par value NIS 0.01 per share (“Preferred Shares”). As of the date of this Subscription Agreement: (i) 16,518,662 Existing Ordinary Shares are issued and outstanding and (ii) 101,348,311 Preferred Shares are issued and outstanding (consisting of (a) 32,901,384 Series A convertible preferred shares of the Issuer, par value NIS 0.01 per share, (b) 9,957,400 Series B-1 preferred shares of the Issuer, par value NIS 0.01 per share, (c) 18,670,270 Series B-2 preferred shares of the Issuer, par value NIS 0.01 per share, (d) 9,424,937 Series C preferred shares of the Issuer, par value NIS 0.01 per share, (e) 19,313,646 Series D convertible preferred shares of the Issuer, par value NIS 0.01 per share, and (iif) 1,000,000 11,080,674 Series E convertible preferred shares of preferred stockthe Issuer, par value $0.0001 NIS 0.01 per share). As of the Closing, the Preferred Shares in (ii) will be converted to Ordinary Shares.
2.2.6 2.2.7 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act and no prospectus approved under the Securities Law is required for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 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 2.2.8 Neither 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 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 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 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.
2.2.8 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.
2.2.9 Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any securities of Issuer security or solicited any offers to buy any security 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 Shares under the Securities ActAct or the Securities Law.
2.2.9 Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements.
2.2.10 No Disqualification Event 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 has 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.
2.2.11 The Issuer is applicable 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 orof this Subscription Agreement (including, to without limitation, the Issuer’s knowledgeissuance of the Shares), any Issuer Covered Person other than filings (i) with the Commission of the Registration Statement (as defined below), except for a Disqualification Event as to which Rule 506(d)(2)(ii)-(iv(ii) required by applicable state or federal securities laws, (iii) required in accordance with the Business Combination Agreement, (iv) required by the New York Stock Exchange (the “NYSE”) or Nasdaq and (d)(3v) the failure of which to obtain would not be reasonably expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.12 As of the Closing, the Issuer’s Ordinary Shares will be registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE or Nasdaq under the Securities Act symbol “VLN”. There is applicable. The Issuer has compliedno suit, action, proceeding or investigation pending or to the extent applicableknowledge of the Issuer, with any disclosure obligations under Rule 506(e) under threatened against the Securities Act. “Issuer Covered Person” meansby the NYSE, 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 NYSE or Nasdaq.
2.2.13 Other than the Placement Agents, Issuer represents and warrants to the other parties hereto that no broker, finder or other financial consultant has acted on its behalf in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as an “issuer” for purposes of Rule 506 under the Securities Act, to create any person listed in the first paragraph of Rule 506(d)(1) under the Securities Actliability on any other parties hereto.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”), with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate of incorporation or under the DGCL.
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 Subscriber, is the 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.
2.2.4 The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain 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 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and timely perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses Agreement (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an 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 an Issuer Material Adverse Effect.
2.2.5 The authorized capital shares of the Issuer as of the date of this Subscription Agreement and as of immediately prior to the Closing consists of (i) 50,000,000 100,000,000 shares of Class A common stock, par value $0.0001 per shareshare (“Existing Class A Shares”); (ii) 10,000,000 shares of Class B common stock, par value $0.0001 per share (“Existing Class B Shares” and together with the Existing Class A Shares, the “Common Stock”); and (iiiii) 1,000,000 shares of preferred stock, par value $0.0001 per shareshare (“Preferred Shares”). As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) 23,000,000 Existing Class A Shares are issued and outstanding; (iii) 5,750,000 Existing Class B Shares are issued and outstanding; and (iv) 12,266,666 warrants, each exercisable to purchase one Existing Class A Share at $11.50 per share (the “Warrants”) are outstanding.
2.2.6 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 The Issuer has made available to Subscriber (including via the Commission’s XXXXX 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 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 the light of the circumstances under which they were made, not misleading; provided provided, that the Issuer makes no such representation or warranty with respect to the proxy statement/prospectus included in statement of the Registration Statement Issuer to be filed in connection with the approval of the Merger Agreement by the stockholders shareholders 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.
2.2.8 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.
2.2.9 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.
2.2.10 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 (d)(3) under the Securities Act is applicable. The Issuer has compliednot 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 Merger Agreement, (ii) the Other Subscription Agreements and (iii) that certain Side Letter, dated the date hereof, by and between the Issuer and Republic Services Alliance Group III, Inc. The Other Subscription Agreements reflect the same Purchase Price as this Subscription Agreement do not include terms or conditions that are materially more advantageous to any other investor compared to the extent applicableSubscriber.
2.2.11 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 assignment of the Shares hereunder, and Subscriber effecting a pledge of Shares shall not be required to provide Issuer with any disclosure obligations under Rule 506(e) under notice thereof or otherwise make any delivery to Issuer pursuant to this Agreement. Issuer hereby agrees to execute and deliver such documentation as a pledgee of the Securities Act. “Issuer Covered Person” means, Shares may reasonably request in connection with respect a pledge of the Shares to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Actsuch pledgee by Subscriber.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 (a) The Issuer has been is an exempted company duly incorporated and is incorporated, validly existing as a corporation and in good standing under the laws of the Delaware General Corporation Law Cayman Islands. The Issuer has all power (“DGCL”), with corporate power or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 The Shares have been duly authorized and(b) At Closing, when issued and delivered subject to Subscriber against full payment for the Shares receipt of the Subscription Price in accordance with the terms of this Subscription Agreement and registered with registration by the Issuer’s transfer agentTransfer Agent, the Shares and the Warrants will be duly authorized, validly issuedissued and allotted and fully paid, fully paid free and non-assessable 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 amended and restated certificate organizational documents (as in effect at such time of incorporation issuance) or under the DGCLlaws of the Cayman Islands.
2.2.3 (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 and HPX, is the valid and binding obligation of the Issuer and is enforceable against it in accordance with its terms, except as such enforceability 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 (d) The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), the issuance and sale of the Shares Acquired Shares, the issuance of the Warrants and the Additional Shares, and the consummation of the certain other transactions contemplated herein 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 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and timely perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to including the exceptions in clauses (a) through (h) in issuance and sale of the definition Acquired Shares and the issuance of Material Adverse Effect in the Merger Agreement mutatis mutandis Warrants and Additional Shares (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 an Issuer Material Adverse Effect.
2.2.5 The (e) As of the date of this Subscription Agreement, the authorized share capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 shares of common stock$50,000 divided into 500,000,000 ordinary shares, with a par value of $0.0001 per shareeach, of which one such share is validly issued and fully paid, and (ii) 1,000,000 shares of preferred stock, par value $0.0001 per shareare not subject to preemptive rights or encumbrances.
2.2.6 (f) Assuming the accuracy of all of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement3.3, no registration under the Securities Act is required for the offer and sale of the Acquired Shares and offer of the Warrants and the Additional Shares by the Issuer to Subscriber.
2.2.7 The Issuer has made available Subscriber pursuant 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 contemplated 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. The Shares and the Warrants (i) were not offered to Subscriber by any form of general solicitation or general advertising, as including methods described in section 502(c) of Regulation D under 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 Securities Act and (ii) to the proxy statement/prospectus included Issuer’s knowledge are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Registration Statement to be filed in connection with the approval of the Merger Agreement by the stockholders of the Issuer (the “Proxy Statement/Prospectus”) Securities Act, 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 Documentsstate securities laws.
2.2.8 (g) The Issuer has provided Subscriber an opportunity to ask questions regarding the Issuer Issuer, the Company and the Transactions 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.
2.2.9 (h) 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.
2.2.10 No Disqualification Event (i) Except for such matters as would not reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect, there is applicable to the Issuer 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’s knowledge, any Issuer Covered Person (as defined below)threatened against the Issuer, except for a Disqualification Event as to which Rule 506(d)(2)(ii)-(iv) or (d)(3ii) under judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Securities Act is applicable. Issuer.
(j) The Issuer has compliednot 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.
(k) Assuming the accuracy of all of Subscriber’s representations and warranties set forth in Section 3.3, 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 and the Warrants pursuant to this Subscription Agreement, other than (i) filings with the U.S. Securities and Exchange Commission (the “Commission”), (ii) filings required by applicable state or federal securities laws, (iii) the filings required in accordance with Section 7.19; (iv) those required by NYSE, (v) those required to consummate the Transactions Closing as provided under the Business Combination Agreement, (vi) any filing required by the Brazilian antitrust laws, if applicable; (vii) any filing of notification under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, or any law or regulation of any other jurisdiction related to competition or merger control, if applicable, (viii) those that will be obtained, made or given, as applicable, on or prior to the extent applicableClosing, and (ix) consents, waivers, authorizations, orders, notices 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.
(l) Upon consummation of the Transactions Closing, the Issuer Shares will be registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and will be listed for trading on NYSE, and the Shares will be approved for listing on NYSE, subject to official notice of issuance.
(m) Neither the Issuer nor any person acting on its behalf is under any obligation to pay any broker’s fee, finder’s fee or other fee or commission in connection with the sale of the Shares, other than the fact that HPX is responsible for the payment of any fees, costs, expenses and commissions of Credit Suisse Securities (USA) LLC and BofA Securities Inc. or any other financial institution replacing any such institutions (the “Placement Agents,” each a “Placement Agent”), and such obligations shall become obligations of the Issuer upon the occurrence of the Transactions Closing.
(n) As of the date hereof, the Business Combination Agreement is valid and in full force and effect, subject to the compliance with Section 2.3(e).
(o) The Issuer has not entered into any subscription agreement, side letter or similar agreement with any disclosure obligations under Rule 506(e) under the Securities Act. “Issuer Covered Person” means, Other Subscriber or any other investor in connection with respect to such Other Subscriber’s or investor’s direct or indirect investment in the Issuer as an “issuer” for purposes of Rule 506 under other than (i) the Securities Act, any person listed in Business Combination Agreement and (ii) the first paragraph of Rule 506(d)(1) under the Securities ActOther Subscription Agreements.
Appears in 1 contract
Samples: Subscription Agreement (HPX Corp.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the The Issuer hereby represents and warrants to such Subscriber and agrees with such Subscriber as follows:
2.2.1 The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and following the Domestication shall be validly existing as a corporation in good standing under the Delaware General Corporation Law (“DGCL”), 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 Redemption Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate of incorporation or under the DGCL.
2.2.3 This Redemption Subscription Agreement has been duly authorized, executed and delivered by 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.
2.2.4 The 2.2.3 Subject to obtaining all required approvals necessary in connection with the performance of the Merger Agreement (including the approval of the Company’s stockholders for the Merger Agreement and the related Transactions including the transactions contemplated by the PIPE Subscription Agreement) 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 Redemption Subscription Agreement (including compliance by the Issuer with all of the provisions hereof)Agreement, issuance and sale of the Subject Shares and the consummation of the certain 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 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an “Issuer 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 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 Subject Shares or the legal authority or ability of the Issuer to perform in all material respects its obligations under this Redemption 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 2.2.4 The authorized capital issued and outstanding shares of Class A common stock of the Issuer immediately prior are registered pursuant to Section 12(b) of the Closing consists Securities Exchange Act of 1934, as amended (i) 50,000,000 shares of common stock, par value $0.0001 per sharethe “Exchange Act”), and (ii) 1,000,000 shares of preferred stock, par value $0.0001 per share.
2.2.6 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required are listed for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 trading on Nasdaq. The Issuer has made available to such Subscriber (including via the Commission’s XXXXX 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 (including the Merger Agreement) with the Commission prior to the date of this Redemption 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 complied, as to form, in all material respects with the requirements of the Securities Act, the Exchange Act, the Sxxxxxxx-Xxxxx Act applicable to the SEC Documents and the any rules and regulations of the Commission promulgated thereunder applicable to the SEC DocumentsDocuments (in each case in effect as of the date of filing). None of the SEC Documents filed under the Exchange Act, contained, when filed as of the respective date of its filing or, if amended prior to the date of this Redemption Subscription AgreementAgreement 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 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.
2.2.8 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.
2.2.9 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) 2.2.5 As 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.
2.2.10 No Disqualification Event is applicable to the Issuer date hereof, there are no pending or, to the knowledge of the Issuer’s knowledge, any Issuer Covered Person threatened suits, claim, actions or proceedings (as defined belowcollectively, “Actions”), except for a Disqualification Event as to which Rule 506(d)(2)(ii)-(iv) which, if determined adversely, would, individually or (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 to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Actaggregate, reasonably be expected to have an Issuer Material Adverse Effect.
Appears in 1 contract
Samples: Redemption Subscription Agreement (Aurora Acquisition Corp.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law of the State of Delaware (“DGCL”), with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate of incorporation or under the DGCL.
2.2.3 This Subscription Agreement has been duly authorized, executed and delivered by 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.
2.2.4 The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), including the issuance and sale of the Shares and the consummation of the certain other transactions contemplated herein will be done in accordance with Nasdaq rules and 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses Agreement (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an 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 an Issuer Material Adverse Effect.
2.2.5 No consent, waiver, authorization, approval, filing with or notification to any court or other federal, state, local or other governmental authority is required on the part of the Issuer with respect to the execution, delivery or performance by the Issuer of this Subscription Agreement (including without limitation the issuance of the Shares), other than (i) the filings required by applicable state or federal securities Laws, (ii) the filings required by Nasdaq, or (iii) those consents, waivers, authorizations, approvals, filings or notifications the failure of which to give, make or obtain would not reasonably be expected to an Issuer Material Adverse Effect.
2.2.6 The authorized capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 100,000,000 shares of Class A Common Stock, par value $0.0001 per share (“Existing Class A Shares”); (ii) 10,000,000 shares of Class B common stock, par value $0.0001 per share, share (“Existing Class B Shares”); and (iiiii) 1,000,000 shares of preferred stock, par value $0.0001 per shareshare (“Preferred Shares”). As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) 17,250,000 Existing Class A Shares are issued and outstanding; (iii) 4,312,500 Existing Class B Shares are issued and outstanding; (iv) 13,800,000 warrants to purchase 13,800,000 Existing Class A Shares are outstanding.
2.2.6 2.2.7 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 2.2.8 The Issuer has made available to Subscriber (including via the Commission’s XXXXX 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 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 the light of the circumstances under which they were made, not misleading; misleading; provided that the Issuer makes no such representation or warranty with respect to the proxy statement/prospectus included in the Registration Statement statement to be filed by the Issuer in connection with the approval of the Merger Agreement Transactions 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.
2.2.8 The 2.2.9 Other than the Other Subscription Agreements, the Business Combination Agreement, any other agreement contemplated by the Business Combination Agreement and except as described in the Registration Statement, the Issuer has provided not entered into any side letter or similar agreement with any Other Subscriber an opportunity to ask questions regarding in connection with such Other Subscriber’s direct or indirect investment in 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 (other than with respect to the Shares.
2.2.9 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.
2.2.10 No Disqualification Event is applicable terms particular to the Issuer or, regulatory requirements of such subscriber or its affiliates or related funds). No Other Subscription Agreement includes terms and conditions that are materially more advantageous to any Other Subscriber than the Subscriber hereunder (other than terms particular to the Issuer’s knowledge, any Issuer Covered Person (as defined belowregulatory requirements of such Other Subscriber or its affiliates or related funds), except for a Disqualification Event as and such Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement to which Rule 506(d)(2)(ii)-(iv) or (d)(3) under the Securities Act is applicable. The Issuer has complied, to the extent applicable, with include any disclosure obligations under Rule 506(e) under the Securities Act. “Issuer Covered Person” means, with respect to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Actsuch terms and conditions.
Appears in 1 contract
Samples: Subscription Agreement (Growth Capital Acquisition Corp.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 (a) The Issuer has been is an exempted company duly incorporated and is incorporated, validly existing as a corporation and in good standing under the laws of the Delaware General Corporation Law Cayman Islands. The Issuer has all power (“DGCL”), with corporate power or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 The Shares have been duly authorized and(b) At Closing, when issued and delivered subject to Subscriber against full payment for the Shares receipt of the Subscription Price in accordance with the terms of this Subscription Agreement and registered with registration by the Issuer’s transfer agentTransfer Agent, the Shares and the Warrants will be duly authorized, validly issuedissued and allotted and fully paid, fully paid free and non-assessable 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 amended and restated certificate organizational documents (as in effect at such time of incorporation issuance) or under the DGCLlaws of the Cayman Islands.
2.2.3 (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 and HPX, is the valid and binding obligation of the Issuer and is enforceable against it in accordance with its terms, except as such enforceability 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 (d) The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), the issuance and sale of the Shares Acquired Shares, the issuance of the Warrants and the Additional Shares, and the consummation of the certain other transactions contemplated herein 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 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and timely perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to including the exceptions in clauses (a) through (h) in issuance and sale of the definition Acquired Shares and the issuance of Material Adverse Effect in the Merger Agreement mutatis mutandis Warrants and Additional Shares (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 an Issuer Material Adverse Effect.
2.2.5 The (e) As of the date of this Subscription Agreement, the authorized share capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 shares of common stock$50,000 divided into 500,000,000 ordinary shares, with a par value of $0.0001 per shareeach, of which one such share is validly issued and fully paid, and (ii) 1,000,000 shares of preferred stock, par value $0.0001 per shareare not subject to preemptive rights or encumbrances.
2.2.6 (f) Assuming the accuracy of all of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement3.3, no registration under the Securities Act is required for the offer and sale of the Acquired Shares and offer of the Warrants and the Additional Shares by the Issuer to Subscriber.
2.2.7 The Issuer has made available Subscriber pursuant 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 contemplated 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. The Shares and the Warrants (i) were not offered to Subscriber by any form of general solicitation or general advertising, as including methods described in section 502(c) of Regulation D under 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 Securities Act and (ii) to the proxy statement/prospectus included Issuer’s knowledge are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Registration Statement to be filed in connection with the approval of the Merger Agreement by the stockholders of the Issuer (the “Proxy Statement/Prospectus”) Securities Act, 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 Documentsstate securities laws.
2.2.8 (g) The Issuer has provided Subscriber an opportunity to ask questions regarding the Issuer Issuer, the Company and the Transactions 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.
2.2.9 (h) 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.
2.2.10 No Disqualification Event (i) Except for such matters as would not reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect, there is applicable to the Issuer 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 (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.
(j) 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.
(k) Assuming the accuracy of all of Subscriber’s knowledgerepresentations and warranties set forth in Section 3.3, 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 and the Warrants pursuant to this Subscription Agreement, other than (i) filings with the U.S. Securities and Exchange Commission (the “Commission”), (ii) filings required by applicable state or federal securities laws, (iii) the filings required in accordance with Section 7.19; (iv) those required by NYSE; (v) those required to consummate the Transactions Closing as provided under the Business Combination Agreement, (vi) any filing required by the Brazilian antitrust laws, if applicable; (vii) any filing of notification under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, or any law or regulation of any other jurisdiction related to competition or merger control, if applicable, (viii) those that will be obtained, made or given, as applicable, on or prior to the Closing, and (ix) consents, waivers, authorizations, orders, notices or filings, the failure of which to obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Covered Person Material Adverse Effect.
(l) Upon consummation of the Transactions Closing, the Issuer Shares will be registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and will be listed for trading on NYSE, and the Shares will be approved for listing on NYSE, subject to official notice of issuance.
(m) Neither the Issuer nor any person acting on its behalf is under any obligation to pay any broker’s fee, finder’s fee or other fee or commission in connection with the sale of the Shares, other than the fact that HPX is responsible for the payment of any fees, costs, expenses and commissions of Credit Suisse Securities (USA) LLC and BofA Securities Inc. or any other financial institution replacing any such institutions (the “Placement Agents,” each a “Placement Agent”), and such obligations shall become obligations of the Issuer upon the occurrence of the Transactions Closing.
(n) As of the date hereof, the Business Combination Agreement is valid and in full force and effect, subject to the compliance with Section 2.3(e).
(o) 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 Business Combination Agreement and (ii) the Other Subscription Agreements. Notwithstanding any of the provisions set forth in the Company Shareholder Subscription Agreement (as defined belowin the Business Combination Agreement), except for a Disqualification Event as which the Subscriber explicitly acknowledges, no Other Subscription Agreement includes terms and conditions that are materially more advantageous to which Rule 506(d)(2)(ii)-(iv) any such Other Subscriber than Subscriber hereunder or (d)(3) under that are adverse to the Securities Act is applicableSubscriber. The Issuer has complied, Other Subscription Agreements have not been amended in any material respect following the date of this Subscription Agreement and reflect the same Purchase Price and terms that are no more favorable to any such Other Subscriber thereunder than the extent applicable, with any disclosure obligations under Rule 506(e) under the Securities Act. “Issuer Covered Person” means, with respect to the Issuer as an “issuer” for purposes terms of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Actthis Subscription Agreement.
Appears in 1 contract
Samples: Subscription Agreement (HPX Corp.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”), with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable assessable, free and clear of all liens or other 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 amended and restated certificate of incorporation or bylaws (as amended or restated from time to time) or under the DGCL.
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 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 (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain 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, 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, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into or timely perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses Agreement (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an a “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 body, domestic or foreign, Governmental Authority having jurisdiction over the Issuer or any of its subsidiaries or any of their respective properties that would reasonably be expected to have an Issuer Material Adverse Effect.
2.2.5 The authorized capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 shares of common stock, par value $0.0001 per share, and (ii) 1,000,000 shares of preferred stock, par value $0.0001 per share.
2.2.6 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 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 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 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 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 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.
2.2.8 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.
2.2.9 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 pursuant to this Subscription Agreement under the Securities Act.
2.2.10 No Disqualification Event 2.2.6 Neither the Issuer nor any person acting on its behalf (including, without limitation, the Placement Agents, any of their respective affiliates or control persons, officers, directors, employees, agents or representatives) 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 applicable entering into the Other Subscription Agreements providing for the sale of certain shares of Class A common stock. Neither the Issuer nor any of its Affiliates has entered into any side letter agreements or other agreements or understandings (including written summaries of any oral understandings) with any Other Subscriber or other investor in connection with the transactions contemplated by the Other Subscription Agreements, other than (a) Other Subscription Agreements, (b) that certain letter agreement with the anchor investor named therein (the “Anchor Investor”)2 dated on or about the date hereof, (c) in the case of the Sponsor, certain affiliates of Altus and the Anchor Investor, the Investor Rights Agreement, and (d) the Business Combination Agreement. Other than with respect to the Other Subscription Agreement with the Sponsor, no Other Subscription Agreement includes or will include terms and conditions more advantageous to any Other Subscriber than to Subscriber hereunder and the Other Subscription Agreements reflect the same purchase price per share. The Other Subscription Agreements have not been amended in any material respect that would result in a violation of the previous sentence.
2.2.8 The authorized capital stock of the Issuer orimmediately prior to the Closing will consist of 261,000,000 shares of capital stock as follows: (a) 250,000,000 shares of Class A common stock, (b) 10,000,000 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, 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 knowledgepublic 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) 2,012,500 shares of Class B common stock are and will be issued and outstanding; (iv) up to 9,366,667 warrants to purchase up to an aggregate of 9,366,667 shares of Class A common stock (including up to 2,000,000 warrants to be issued in connection with the Second Amended and Restated Promissory Note, dated as of February 16, 2021, by and between the Issuer and the Sponsor) (the “Private Placement Warrants”) are and will be outstanding; and (v) 10,062,500 redeemable warrants to purchase an aggregate of 10,062,500 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 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 Business Combination 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 Second Merger Sub, the Issuer Covered Person has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, 2 Note to Draft: Anchor Investor who has nomination rights with respect to one director, separate from the CBRE director nominee. 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 Business Combination Agreement and the Ancillary Agreements.
2.2.9 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, except for a Disqualification Event as to which Rule 506(d)(2)(ii)-(iv(x) or (d)(3) no registration under the Securities Act is applicablerequired 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 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.
2.2.10 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 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 in order 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 and registration statement to be filed by the Issuer with respect to the Transactions or with respect to any other information relating to Altus or any of its affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has compliedtimely 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. Subscriber acknowledges that (i) the staff of the Commission issued the Staff Statement on Accounting and Reporting Considerations for Warrants Issued by Special Purpose Acquisition Companies on April 12, 2021 (the “Statement”), (ii) the Issuer continues to review the Statement and its implications, including on the financial statements and other information included in the SEC Documents, and (iii) any restatement, revision or other modification of the SEC Documents in connection with such review of the Statement or any subsequent related agreements or other guidance from the staff of the Commission shall be deemed not material for purposes of this Subscription Agreement.
2.2.11 The Issuer is in compliance with all applicable law, except where such non-compliance would not have an Issuer Material Adverse Effect. 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, an Issuer Material Adverse Effect.
2.2.12 As of the date hereof, there are no pending or, to the extent applicableknowledge of the Issuer, with any disclosure 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 Rule 506(ethis 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 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 The issued and outstanding shares of 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 (“NYSE”) under the Securities Act. symbol “CBAH.” There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer Covered Person” means, by 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 NYSE. The Issuer as an “issuer” for purposes has taken no action that is designed to terminate the registration of Rule 506 the Class A common stock under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Exchange Act.
Appears in 1 contract
Samples: Subscription Agreement (CBRE Acquisition Holdings, Inc.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”), with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate of incorporation or under the DGCL.
2.2.3 This Subscription Agreement has been duly authorized, executed and delivered by 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.
2.2.4 The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain 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 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses Agreement (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an 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 an Issuer Material Adverse Effect.
2.2.5 The authorized capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 100,000,000 shares of Class A common stock, par value $0.0001 per shareshare (“Existing Class A Shares”); (ii) 10,000,000 shares of Class B common stock, par value $0.0001 per share (“Existing Class B Shares”); and (iiiii) 1,000,000 shares of preferred stock, par value $0.0001 per shareshare (“Preferred Shares”). [As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) [·] Existing Class A Shares are issued and outstanding; (iii) [·] Existing Class B Shares are issued and outstanding; and (iv) [·] warrants to purchase [·] Existing Class A Shares are outstanding.]
2.2.6 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 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 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 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 the light of the circumstances under which they were made, not misleading; provided provided, that the Issuer makes no such representation or warranty with respect to the proxy statement/prospectus included in the Registration Proxy 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.
2.2.8 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.
2.2.9 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.
2.2.10 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 (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 to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Act.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the SharesWarrant, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 2.2.1. The Issuer has been is a corporation duly incorporated and is incorporated, validly existing as a corporation and in good standing under the laws of the Delaware General Corporation Law (“DGCL”)State of Delaware, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 2.2.2. The Shares have execution and delivery of the Warrant has been duly authorized andby the Issuer. Upon issuance in accordance with, when issued and delivered payment pursuant to Subscriber this Agreement, the Warrant will constitute valid and binding obligations of the Issuer, and will be enforceable against full payment for the Shares Issuer in accordance with their respective 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 terms rights of this Subscription Agreement creditors generally and registered with the Issuer’s transfer agent(ii) principles of equity, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of whether considered at law or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate of incorporation or under the DGCLequity.
2.2.3 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 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.
2.2.4 2.2.4. The execution, delivery and performance by the Issuer of this Subscription Agreement (including compliance by and the Issuer with all of the provisions hereof)Warrant, issuance and sale of the Shares Warrant and the consummation of the certain 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, 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, assets, liabilities, financial condition, shareholders’ equity or results of operations of the Issuer and its subsidiaries, taken as or to have a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or material adverse effect on the legal authority or ability of the Issuer to enter into or timely perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (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 an Issuer Material Adverse Effect.
2.2.5 The authorized capital shares 2.2.5. Upon issuance in accordance with, and payment pursuant to, the terms hereof and the respective Warrants, the Warrants will be duly and validly issued and the Shares issuable by the Issuer upon exercise of the Issuer immediately prior Warrant will be duly and validly issued, fully paid and nonassessable. On the date of issuance of the Warrant, the Shares issuable upon exercise of the Warrant shall have been reserved for issuance. Upon issuance in accordance with, and payment pursuant to, the terms hereof and the Warrant, the Subscriber will have good title to the Closing consists Warrant and the Shares issuable by the Issuer upon exercise of such Warrants, free and clear of all liens, claims and encumbrances of any kind, other than (i) 50,000,000 shares of common stocktransfer restrictions hereunder and under other agreements entered into between the Issuer and the Subscriber, par value $0.0001 per share(ii) transfer restrictions under federal and state securities laws, and (iiiii) 1,000,000 shares of preferred stockliens, par value $0.0001 per share.
2.2.6 Assuming claims or encumbrances imposed due to the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale actions of the Shares by the Issuer to Subscriber.
2.2.7 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 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 applicable to the SEC Documents2.2.6. 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; provided that the Issuer makes no such representation or warranty with respect to the proxy statement/prospectus included in the 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.
2.2.8 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.
2.2.9 Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Issuer security Securities 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 for under the transactions contemplated hereby or would require registration Securities Act of the issuance Warrant to be issued as contemplated hereby.
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 the Shares Regulation D under the Securities Act, in connection with the offer or sale of any of the Warrant and neither the Issuer nor any person acting on its behalf offered the Warrant in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.10 No Disqualification Event is applicable to 2.2.8. Assuming the Issuer oraccuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, 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)-(ivx) or (d)(3) no registration under the Securities Act is applicablerequired for the offer and sale of the Warrant 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 Warrant contemplated by this Subscription Agreement.
2.2.9. 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.
2.2.10. The Issuer has compliednot 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 Warrants.
2.2.11. 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.
2.2.12. 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 Warrants or (ii) the shares of Issuer Common Stock to be issued pursuant to the extent applicableWarrants.
2.2.13. Neither the Issuer nor any of its subsidiaries is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.2.14. Issuer acknowledges and agrees that, notwithstanding anything herein to the contrary, the Warrant may be pledged by Subscriber in connection with a bona fide margin agreement, which shall not be deemed to be a transfer, sale or assignment of the Warrant hereunder, and Issuer effecting a pledge of Warrant shall not be required to provide Issuer with any disclosure obligations under Rule 506(e) under notice thereof or otherwise make any delivery to Issuer pursuant to this Subscription Agreement. Issuer hereby agrees to execute and deliver such documentation as a pledgee of the Securities Act. “Issuer Covered Person” means, Warrant may reasonably request in connection with respect a pledge of the Warrant to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Actsuch pledgee by Subscriber.
Appears in 1 contract
Samples: Warrant Subscription Agreement (Rigetti Computing, Inc.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the The Issuer hereby represents and warrants to Subscriber Holder and acknowledges and agrees with Subscriber Holder as follows:
2.2.1 (a) The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”), 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 Redemption and Voting Agreement.
2.2.2 The Shares have been duly authorized and, when issued (b) This Redemption and delivered to Subscriber against full payment for the Shares in accordance with the terms of this Subscription Agreement and registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate of incorporation or under the DGCL.
2.2.3 This Subscription Voting Agreement has been duly authorized, executed and delivered by 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.
2.2.4 (c) The execution, delivery and performance of this Subscription Redemption and Voting Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and hereof)and the consummation of the certain 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 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and perform in all material respects its obligations under the Merger this Redemption and Voting Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an 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 an Issuer Material Adverse Effect.
2.2.5 The authorized capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 shares of common stock, par value $0.0001 per share, and (ii) 1,000,000 shares of preferred stock, par value $0.0001 per share.
2.2.6 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 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 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 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 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 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.
2.2.8 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.
2.2.9 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.
2.2.10 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 (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 to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Act.
Appears in 1 contract
Samples: Redemption and Voting Agreement (TWC Tech Holdings II Corp.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the The Issuer hereby represents and warrants to Subscriber and agrees with Subscriber the Investor as follows:
2.2.1 (a) The Issuer has been is an exempted company duly incorporated and is incorporated, validly existing as a corporation and in good standing under the laws of the Delaware General Corporation Law Cayman Islands. The Issuer has all power (“DGCL”), with corporate power 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.
2.2.2 The (b) At the Closing, the Shares will have been duly authorized andauthorized, and when issued and delivered to Subscriber the Investor against full payment in cash for the Shares in accordance with the terms of this Subscription Agreement and registered with in the Issuer’s transfer agentregister of members, the Shares will be validly issued, issued and allotted and fully paid and non-assessable 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 amended and restated certificate organizational documents (as in effect at such time of incorporation issuance) or under the DGCLlaws of the Cayman Islands.
2.2.3 (c) This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this 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 (d) The execution, delivery issuance and performance sale of this Subscription Agreement (including the Shares and the compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares this 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and timely perform in all material respects its obligations under the Merger this Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (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 an Issuer Material Adverse Effect.
2.2.5 The authorized capital shares of the Issuer immediately prior to the Closing consists of (ie) 50,000,000 shares of common stock, par value $0.0001 per share, and (ii) 1,000,000 shares of preferred stock, par value $0.0001 per share.
2.2.6 Assuming the accuracy of Subscriberthe Investor’s representations and warranties set forth in Section 2.1 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 Subscriberthe 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.
2.2.7 (f) The Issuer has made will use the 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 Subscriber 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 via sanctions programs administered by the CommissionUS Department of the Treasury’s XXXXX systemOffice of Foreign Assets Control), United Kingdom and the European Union.
(g) The Issuer is not (i) a true, correct person or entity named on the Specially Designated Nationals and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed Blocked Persons List administered by the Issuer with U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the Commission prior to President of the date United States and administered by OFAC, or a person or entity prohibited by any OFAC Sanctions program, or any similar list of this Subscription Agreement sanctioned persons administered by the European Union or the United Kingdom (the collectively, “SEC DocumentsSanctions Lists”); (ii) directly or indirectly, which SEC Documentsowned 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 of their respective filing datesdefined in the Cuban Assets Control Regulations, complied in all material respects with the requirements of the Exchange Act applicable 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to the SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable a non- U.S. shell bank (each, a “Prohibited Investor”). The Issuer agrees to the SEC Documents. None of the SEC Documents filed under the Exchange Act, contained, when filed orprovide law enforcement agencies, if amended prior to the date of this Subscription Agreementrequested thereby, such records 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 misleadingby applicable law; provided that the Issuer makes no 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 representation sanctions programs to which it is legally subject and with which it is legally obligated to comply.
(h) No broker, finder or warranty 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 proxy statement/prospectus included in the Registration Statement to be filed in connection with the approval purchase of the Merger 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 stockholders 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 “Proxy Statement/ProspectusExcluded 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 other information relating 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 Company 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 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 be received by such Financing Party pursuant to the Commission since its inception and through applicable Permitted Financing Agreement. In addition, if 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 Issuer provides any terms more favorable to any of the SEC Documents.
2.2.8 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 Other Equity Investors with respect to the Shares.
2.2.9 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.
2.2.10 No Disqualification Event is applicable to Equity Subscription Agreements (but excluding 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)-(ivExcluded Terms) or (d)(3) under terms more favorable to any of 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, Financing Parties with respect to the Equity Securities of the Issuer as an “issuer” for purposes of Rule 506 under the Securities ActPermitted 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 person listed 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 first paragraph receipt of Rule 506(d)(1the 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(j) under shall not apply to the Securities ActExcluded Subscription Agreements.
Appears in 1 contract
Samples: Strategic Investment Agreement
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and the Placement Agents and agrees with Subscriber as follows:
2.2.1 a) The Issuer has been is a private limited company by shares duly incorporated and is incorporated, validly existing as a corporation and in good standing under the laws of the Delaware General Corporation Law England and Wales. The Issuer has all power (“DGCL”), with corporate power or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 The Shares have been duly authorized andb) At Closing, when issued and delivered subject to Subscriber against full payment for the Shares receipt of the Purchase Price in accordance with the terms of this Subscription Agreement and registered registration with the Issuer’s transfer agentagent (the “Transfer Agent”), the Shares will be validly issuedissued and allotted and fully paid, fully paid free and non-assessable clear of any liens or other 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 amended and restated certificate articles of incorporation association (as in effect at such time of issuance) or under the DGCLUK Companies Xxx 0000 (as amended).
2.2.3 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 and RMG II, is the 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.
2.2.4 d) The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain 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 the Company 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 the Company is a party or by which the Issuer or the Company is bound or to which any of the property or assets of the Issuer or the Company is subject, which would reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and timely perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (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 the Company or any of its their respective properties that would reasonably be expected to have an Issuer Material Adverse Effect.
2.2.5 The e) As of the date of this Subscription Agreement, the authorized capital shares stock of the Issuer consists of 1 fully paid ordinary share with nominal value of $0.01, 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 Closing consists 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, (i2) 50,000,000 securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of common stockthe Issuer, par value $0.0001 per shareor (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 (iicollectively, the “Equity Interests”) 1,000,000 shares or securities convertible into or exchangeable or exercisable for Equity Interests. As of preferred stockthe date of this Subscription Agreement, par value $0.0001 per sharethere 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.
2.2.6 f) Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 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 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 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.
2.2.7 The Issuer has made available to Subscriber (including via the Commission’s XXXXX systemg) 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 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 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 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.
2.2.8 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.
2.2.9 h) 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.
2.2.10 No Disqualification Event is applicable i) Neither the Issuer, the Company nor RMG II 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 RMG II other than the Business Combination Agreement and the Other Subscription Agreements. The Other Subscription Agreements reflect the same Purchase Price as this Subscription Agreement and do not include terms or conditions that are more advantageous to any other investor compared to the Subscriber, 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.
j) 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’s , 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.
k) Neither the Issuer, nor to its knowledge, the Company, has received any written communication from a governmental authority that alleges that the Issuer Covered Person 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.
l) 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 6.20 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.
m) Upon consummation of the Transactions, the Issuer Shares 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.
n) Upon consummation of the Transaction and except for the equity securities of the Company that will remain held by existing shareholders as set out in the Business Combination Agreement, the Issuer will own all of the remaining equity securities of the Company, which will represent the majority of the common shares of the Company.
o) Neither the Issuer nor any person acting on its behalf is under any obligation to pay any broker’s fee or finder’s fee or commission in connection with the sale of the Shares other than to the Placement Agents (as defined below).
p) Issuer acknowledges and agrees that, except for notwithstanding anything herein to the contrary, the Shares may be pledged by Subscriber in connection with a Disqualification Event bona fide margin agreement, which shall not be deemed to be a transfer, sale or assignment of the Shares hereunder, and Subscriber effecting a pledge of Shares shall not be required to provide Issuer with any notice thereof or otherwise 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 connection with a pledge of the Shares to which Rule 506(d)(2)(ii)-(ivsuch pledgee by Subscriber.
q) or (d)(3) under the Securities Act is applicable. The Issuer has compliedis not, to and immediately after receipt of payment for the extent applicable, with any disclosure obligations under Rule 506(e) under the Securities Act. “Issuer Covered Person” means, with respect to Shares of the Issuer will not be, subject to registration as an “issuerinvestment company” for purposes of Rule 506 under the Securities ActInvestment Company Act of 1940, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Actas amended.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber Subscriber, as of the date hereof and as of the Closing, as follows:
2.2.1 The Issuer has been is a corporation duly incorporated organized and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”)State of Israel, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be 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 amended and restated certificate articles of incorporation association or under the DGCLLaws of the State of Israel.
2.2.3 This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes a valid and binding obligation of Subscriber, then this Subscription Agreement 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 affecting generally the enforcement of creditors’ rights and subject to or affecting the rights of creditors generally and (ii) general principles of equity, whether considered at law or equity.
2.2.4 The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain other transactions contemplated herein 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (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 an Issuer Material Adverse Effect.
2.2.5 The As of the date of this Subscription Agreement, the authorized capital shares of the Issuer immediately prior to the Closing consists consist of (i) 50,000,000 25,607,976 ordinary shares of common stock, no par value $0.0001 per share, (“Existing Ordinary Shares”) and (ii) 1,000,000 16,607,483 preferred shares of preferred stock, no par value $0.0001 per share(“Preferred Shares”). As of the date hereof: (i) 6,708,766 Existing Ordinary Shares are issued and outstanding and (ii) 13,406,576 Preferred Shares are issued and outstanding (consisting of (a) 3,605,767 series seed preferred shares of the Issuer, no par value, (b) 4,305,165 series A preferred shares of the Issuer, no par value, (c) 3,191,340 series B preferred shares of the Issuer, no par value, (d) 2,076,070 series C preferred shares of the Issuer, no par value and (e) 228,234 series C-1 preferred shares of the Issuer, no par value).
2.2.6 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, (i) no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 The Issuer has made available to Subscriber and (including via 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 Commission’s XXXXX system) a true, correct and complete copy part of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer in connection 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 consummation 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 transactions contemplated by this Subscription Agreement, as except for filings pursuant to Regulation D of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to Securities Act and applicable state a material fact securities laws and filings required to be stated therein or necessary to make consummate the statements therein, in Transactions as provided under 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 Registration Statement to be filed in connection with the approval of the Merger Business Combination Agreement by the stockholders of the Issuer (the “Proxy Statement/Prospectus”) or and any other information relating to consents, approvals, orders, authorizations, registrations, qualifications, designations, declarations or filings, the Company or any absence of its affiliates included in any SEC Document or filed as which would not have 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 DocumentsMaterial Adverse Effect.
2.2.8 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.
2.2.9 2.2.8 Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any securities of Issuer security or solicited any offers to buy any security 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 Shares under the Securities Act.
2.2.10 2.2.9 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 (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 to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Act.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the The Issuer hereby represents and warrants to Subscriber Holder and acknowledges and agrees with Subscriber Holder as follows:
2.2.1 The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”), 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 Non-Redemption Agreement.
2.2.2 The Backstop Shares have been duly authorized and, when issued and delivered to Subscriber Holder against full payment for the Backstop Shares in accordance with the terms of this Subscription Non-Redemption Agreement and registered with the Issuer’s transfer agent, the Backstop Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate of incorporation or under the DGCL.
2.2.3 This Subscription Non-Redemption Agreement has been duly authorized, executed and delivered by 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.
2.2.4 The execution, delivery and performance of this Subscription Non-Redemption Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Backstop Shares and the consummation of the certain 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 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and perform in all material respects its obligations under the Merger this Non-Redemption Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an 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 an Issuer Material Adverse Effect.
2.2.5 The As of the date of this Non-Redemption Agreement, the authorized capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 250,000,000 shares of Class A common stock, par value $0.0001 per shareshare (“Existing Class A Shares”); (ii) 50,000,000 shares of Class B common stock, par value $0.0001 per share (“Existing Class B Shares”); and (iiiii) 1,000,000 shares of preferred stock, par value $0.0001 per shareshare (“Preferred Shares”). As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) 110,000,000 Existing Class A Shares 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 Existing Class A Shares (the “Private Placement Warrants”) are outstanding; and (v) 27,500,000 warrants to purchase 27,500,000 Existing Class A Shares (the “Public Warrants”) are outstanding.
2.2.6 Assuming the accuracy of SubscriberHolder’s representations and warranties set forth in Section 2.1 of this Subscription Non-Redemption Agreement, no registration under the Securities Act is required for the offer and sale of the Backstop Shares by the Issuer to SubscriberHolder.
2.2.7 The Issuer has made available to Subscriber Holder (including via the Securities and Exchange Commission’s (the “Commission”) 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 Non-Redemption 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 Non-Redemption 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; provided provided, that the Issuer makes no such representation or warranty with respect to the proxy statement/prospectus included in the Registration Proxy Statement to be filed in connection with the approval of the Merger Agreement by the stockholders of Issuer with respect to the Issuer (the “Proxy Statement/Prospectus”) Transactions or any other information relating to the Company 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 unresolved comments in comment letters from the Commission staff with respect to any of the SEC Documents.
2.2.8 The Issuer has provided Subscriber an opportunity to ask questions regarding issued and outstanding Class A common stock of the Issuer and made available is registered pursuant 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.
2.2.9 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)(212(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and listed for trading on the exemption from registration for the transactions contemplated hereby NYSE. There is no suit, action, proceeding 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 investigation pending or, to the knowledge of the Issuer’s knowledge, threatened against the Issuer by the NYSE or the Commission with respect to any Issuer Covered Person (as defined below), except for a Disqualification Event as intention by such entity to which Rule 506(d)(2)(ii)-(iv) deregister the Class A common stock or (d)(3) under prohibit or terminate the Securities Act is applicablelisting of the Class A common stock on the NYSE. The Issuer has compliedtaken no action that is designed to terminate the registration of the Class A common stock under the Exchange Act.
2.2.9 No Other Non-Redemption Agreement includes terms and conditions that are materially more advantageous to any such Other Holder than Holder hereunder; provided, however, that Other Non-Redemption Agreements that have been entered into with certain Other Holders who have also entered into Subscription Agreements with the Issuer pursuant to which such Other Holders have agreed to subscribe for shares of Class A common stock of the Issuer up to or in excess of the amount of Covered Shares currently held by such Other Holder, may contain a limited exception to the extent applicable, with transfer restrictions set forth in Section 4.1. The Other Non-Redemption Agreements have not been amended in any disclosure obligations under Rule 506(e) under material respect following the Securities Act. “Issuer Covered Person” means, with respect to the Issuer as an “issuer” for purposes date of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Actthis Non-Redemption Agreement.
Appears in 1 contract
Samples: Non Redemption Agreement (MPH Acquisition Holdings LLC)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”), with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement..
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate of incorporation or under the DGCL.
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 Subscriber, is the 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.
2.2.4 The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain 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 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and timely perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses Agreement (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an 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 an Issuer Material Adverse Effect.
2.2.5 The authorized capital shares of the Issuer as of the date of this Subscription Agreement and as of immediately prior to the Closing consists of (i) 50,000,000 100,000,000 shares of Class A common stock, par value $0.0001 per shareshare (“Existing Class A Shares”); (ii) 10,000,000 shares of Class B common stock, par value $0.0001 per share (“Existing Class B Shares” and together with the Existing Class A Shares, the “Common Stock”); and (iiiii) 1,000,000 shares of preferred stock, par value $0.0001 per share.share (“Preferred Shares”). As of the date hereof: (i) no Preferred Shares are issued and outstanding; (ii) 23,000,000 Existing Class A Shares are issued and outstanding; (iii) 5,750,000 Existing Class B Shares are issued and outstanding; and (iv) 12,266,666 warrants, each exercisable to purchase one Existing Class A Share at $11.50 per share (the “Warrants”) are outstanding.
2.2.6 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber..
2.2.7 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 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 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 the light of the circumstances under which they were made, not misleading; provided provided, that the Issuer makes no such representation or warranty with respect to the proxy statement/prospectus included in statement of the Registration Statement Issuer to be filed in connection with the approval of the Merger Agreement by the stockholders shareholders 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..
2.2.8 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..
2.2.9 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.
2.2.10 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 (d)(3) under the Securities Act is applicable. The Issuer has compliednot 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 Merger Agreement, (ii) the Other Subscription Agreements and (iii) that certain Side Letter, dated the date hereof, by and between the Issuer and Republic Services Alliance Group III, Inc. The Other Subscription Agreements reflect the same Purchase Price as this Subscription Agreement do not include terms or conditions that are materially more advantageous to any other investor compared to the extent applicableSubscriber.
2.2.11 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 assignment of the Shares hereunder, and Subscriber effecting a pledge of Shares shall not be required to provide Issuer with any disclosure obligations under Rule 506(e) under notice thereof or otherwise make any delivery to Issuer pursuant to this Agreement. Issuer hereby agrees to execute and deliver such documentation as a pledgee of the Securities ActShares may reasonably request in connection with a pledge of the Shares to such pledgee by Subscriber. “Issuer Covered Person” means, with respect to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Act.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 The Issuer has been is a corporation duly incorporated and is organized, validly existing as a corporation and in good standing under the laws of the Delaware General Corporation Law (“DGCL”)State of Israel, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate articles of incorporation association or under the DGCLLaws of the State of Israel.
2.2.3 This Subscription Agreement has been duly authorized, executed and delivered by the Issuer and is enforceable against it 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 affecting generally the enforcement of creditors’ rights and subject to or affecting the rights of creditors generally and (ii) general principles of equity, whether considered at law or equity.
2.2.4 The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain 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 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 business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses Agreement (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an 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 an Issuer Material Adverse Effect.
2.2.5 The As of the date of this Subscription Agreement, the authorized capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 204,870,390 ordinary shares of common stock, no par value $0.0001 per share, (“Existing Ordinary Shares”) and (iii) 95,129,610 preferred shares of no par value (“Preferred Shares”). As of the date hereof: (i) 19,280,691 Existing Ordinary Shares are issued and outstanding and (ii) 1,000,000 80,038,346 Preferred Shares are issued and outstanding (consisting of (a) 23,255,810 series A convertible preferred shares of the Issuer, no par value, (b) 18,116,580 series B convertible preferred stockshares of the Issuer, no par value, (c) 3,454,440 series B-1 convertible preferred shares of the Issuer, no par value, (d) 32,137,295 series C convertible preferred shares of the Issuer, no par value $0.0001 per shareand (e) 3,074,221 series C-1 convertible preferred shares of the Issuer, no par value).
2.2.6 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 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 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 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 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 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.
2.2.8 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.
2.2.9 2.2.8 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.
2.2.10 2.2.9 No Disqualification Event is applicable to the Issuer or, to the Issuer’s 's knowledge, any Issuer Covered Person (as defined below), except for a Disqualification Event as to which Rule 506(d)(2)(ii)-(iv) or (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 to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Act.
Appears in 1 contract
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”), with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s amended and restated certificate of incorporation or under the DGCL.
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 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 (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain 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, 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, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into or timely perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses Agreement (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an a “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 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 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 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 pursuant to this Subscription Agreement 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 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 and a subscription agreement with Sponsor (any such agreement, the “Sponsor Subscription Agreement”) for the sale of certain shares of Class A common stock. Neither Issuer nor any of its Affiliates has entered into any side letter agreements or other agreements or understandings (including written summaries of any oral understandings) with any Other Subscriber in connection with the transactions contemplated by the Other Subscription Agreements, other than (a) Other Subscription Agreements and (b) as disclosed to Subscriber by Issuer prior to the date hereof. No Other Subscription Agreement or any Sponsor Subscription Agreement includes or will include terms and conditions materially more advantageous to any Other Subscriber or to the Sponsor with respect to the purchase and sale of Class A common stock by the Sponsor than to Subscriber hereunder and any Sponsor Subscription Agreement and the Other Subscription Agreements reflect the same purchase price per share.
2.2.8 The authorized capital shares stock of the Issuer immediately prior to the Closing consists will consist of (i) 50,000,000 111,000,000 shares of capital stock as follows: (a) 100,000,000 shares of Class A common stock, (b) 10,000,000 shares of Class B common stock, par value $0.0001 per share, share (“Authorized Class B Shares”); and (iic) 1,000,000 shares of preferred stock, par value $0.0001 per shareshare (“Authorized 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) 27,500,000 Authorized Class A Shares are and will be issued and outstanding; (iii) 6,875,000 Authorized Class B Shares are and will be issued and outstanding; (iv) up to 5,000,000 warrants to purchase up to an aggregate of 5,000,000 shares of Class A common stock (the “Private Placement Warrants”) are and will be outstanding; and (v) 9,166,667 warrants to purchase an aggregate of 9,166,667 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 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 Sponsor Subscription Agreement, 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 the 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 Transaction Agreements.
2.2.6 2.2.9 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 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 SubscriberSubscriber 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.
2.2.7 2.2.10 The Issuer has made available to Subscriber (including via the Commission’s XXXXX 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 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 the light of the circumstances under which they were made, not misleading; misleading; provided that the Issuer makes no such representation or warranty with respect to the proxy statement/prospectus included in the Registration Statement statement and registration statement to be filed in connection with the approval of the Merger Agreement by the stockholders of Issuer with respect to the Issuer (the “Proxy Statement/Prospectus”) Transactions or with respect to any other information relating to the Company Blade 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. .
2.2.11 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.
2.2.8 The Issuer has provided Subscriber an opportunity to ask questions regarding the Issuer and made available to Subscriber all the information reasonably available pending or, to the Issuer that Subscriber has reasonably requested to make an investment decision with respect to the Shares.
2.2.9 Neither knowledge of the Issuer, nor any person acting threatened, Actions, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have a material adverse effect on its behalf has, directly or indirectly, made any offers or sales the ability 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) to enter into and perform its obligations under this Subscription Agreement. As of the Securities Act for date hereof, there is no unsatisfied judgment or any open injunction binding upon the exemption from registration for 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.
2.2.12 No broker, finder or other financial consultant has acted on behalf of Issuer in connection with this Subscription Agreement or 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 in such a Disqualification Event way as to which Rule 506(d)(2)(ii)-(iv) or (d)(3) under the Securities Act is applicable. The Issuer has complied, to the extent applicable, with create any disclosure obligations under Rule 506(e) under the Securities Act. “Issuer Covered Person” means, with respect to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Actliability on Subscriber.
Appears in 1 contract
Samples: Subscription Agreement (Blade Urban Air Mobility, Inc.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the The Issuer hereby represents and warrants to Subscriber the Purchasers and agrees with Subscriber the Purchasers, as of the date hereof and as of the Closing, as follows:
2.2.1 2.3.1 The Issuer has been is a corporation duly incorporated organized and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”)State of Israel, 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 Share Purchase Agreement.
2.2.2 2.3.2 The Secondary Shares have been duly authorized andauthorized, when issued and delivered to Subscriber against full payment for the Shares in accordance with the terms of this Subscription Agreement and registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will have not have been issued in violation of of, or subject to any preemptive or similar rights created under under, the Issuer’s amended and restated certificate articles of incorporation association (the “Articles”) or under similar constitutive agreements or the DGCLLaws of the State of Israel. 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 Secondary Shares that have not been or will not be validly waived on or prior to the Closing.
2.2.3 2.3.3 This Subscription Share Purchase Agreement has been duly authorized, executed and delivered by the Issuer and, assuming that this Share Purchase Agreement constitutes a valid and binding obligation of the other 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.
2.2.4 2.3.4 The execution, delivery and performance of this Subscription Share Purchase Agreement (including compliance by the Issuer with all of the provisions hereof), issuance and the sale of the Secondary 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, in each case, which would reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into and perform in all material respects its obligations under the Merger this Share Purchase Agreement or this Subscription Agreement, subject to the exceptions in clauses (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an 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 an Issuer Material Adverse Effect.
2.2.5 The 2.3.5 As of the date of this Share Purchase Agreement, the authorized capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 shares 3,558,540,631 Ordinary Shares of common stock, NIS 0.00001 par value $0.0001 per share, share (“Existing Ordinary Shares”) and (ii) 1,000,000 41,459,369 preferred shares of NIS 0.00001 par value per share (“Preferred Shares”). As of the date of this Share Purchase Agreement: (i) 130,876,394 Existing Ordinary Shares are issued and outstanding and (ii) 41,459,369 Preferred Shares are issued and outstanding (consisting of 41,459,369 series A preferred stockshares of the Issuer, par value $0.0001 NIS 0.00001 per share). Immediately prior to the Closing, the Preferred Shares will be converted to Ordinary Shares.
2.2.6 Assuming 2.3.6 Neither the accuracy Company nor the Issuer has entered into any side letter or similar agreement with any other investor (including any Other Purchaser or Other Seller) in connection with such investor’s direct or indirect investment in the Issuer (other than any side letter or similar agreement relating to the transfer to any investor of Subscriber’s representations and warranties set forth in Section 2.1 securities to be issued to the direct or indirect securityholders of this Subscription the Issuer pursuant to the Merger Agreement).
2.3.7 Neither the Issuer nor any person acting on its behalf has, no registration directly or indirectly, made any offers or sales of any securities of the Issuer or solicited any offers to buy any securities of the Issuer under circumstances that would adversely affect reliance by the Sellers on the “section 4(a)(1 1/2)” exemption under the Securities Act is required for the offer and exemption from registration for the transactions contemplated hereby or would require registration of the sale of the Secondary Shares under the Securities Act.
2.3.8 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 and neither the Issuer, nor any person acting on its behalf has 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.
2.3.9 The Issuer is classified as a Subchapter C corporation for U.S. federal income tax purposes.
2.3.10 None of the Issuer or any of its subsidiaries are, or have ever been, a real property corporation (Igud Mekarke’in) within the meaning of this term under section 1 of the Israeli Land Taxation Law (Appreciation and Acquisition), 5723-1963.
2.3.11 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 Share Purchase Agreement, other than in connection with rights of first refusal pursuant to Subscriberthe Articles (which rights have been waived on or prior to the date hereof by the parties entitled thereto) and/or filings (i) required by applicable state or federal securities laws, (ii) required in accordance with the Merger Agreement, (iii) required by the New York Stock Exchange (the “NYSE”) or The Nasdaq Stock Market (“NASDAQ”) and (iv) the failure of which to obtain would not be reasonably expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.
2.2.7 2.3.12 As of the Closing, the Issuer’s Ordinary Shares will be registered pursuant to section 12(b) of the Exchange Act and listed for trading on the NYSE or NASDAQ under the symbol “CLBT”. There is no suit, action, proceeding or investigation pending or to the knowledge of the Issuer, threatened against the Issuer by the NYSE, 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 NYSE or NASDAQ.
2.3.13 Other than the Placement Agents, Issuer represents and warrants to the other parties hereto that no broker, finder or other financial consultant has acted on its behalf in connection with this Share Purchase Agreement or the transactions contemplated hereby in such a way as to create any liability on any other parties hereto.
2.3.14 The Issuer represents and warrants to each Purchaser that the information contained in the Investor Presentation is true and complete in all material respects, and that any changes to such information, including any changes to such information contained in the proxy statement or registration statement filed by the Issuer with respect to the Transactions will be immaterial.
2.3.15 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, or any of its subsidiaries, as applicable, (ii) 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 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 subsidiaries, as applicable, or any of their respective 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, an Issuer Material Adverse Effect.
2.3.16 The Issuer is in compliance with all applicable laws, except where such non-compliance with not, individually or in the aggregate, be reasonably expected to have an Issuer Material Adverse Effect. The Issuer has made available 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, individually or in the aggregate, be reasonably likely to Subscriber have an Issuer Material Adverse Effect.
2.3.17 The Issuer has not entered into any Share Purchase Agreement (or side letter or similar agreement in respect thereof) with any Other Purchaser or other Purchaser on terms (economic or otherwise) that are materially more favorable to such subscriber or investor than as set forth in this Share Purchase Agreement.
2.3.18 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) investigation, action, suit, claim or other proceeding pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity outstanding against the Issuer.
2.3.19 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.
2.3.20 Each of the Issuer and any of its directors and officers is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by OFAC, (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, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States or (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515.
2.3.21 (i) Each of the Issuer and any of its directors and officers has not engaged in any activity or conduct which would violate any applicable anti-bribery, anti-corruption or anti-money laundering laws, regulations or rules in any applicable jurisdiction (including via the CommissionU.S. Foreign Corrupt Practices Act of 1977, as amended), (ii) the Issuer maintains systems, policies and procedures designed to prevent violation of such laws, regulations and rules and (iii) no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator having jurisdiction over the Issuer, with respect to such laws, regulations and rules is pending and, to the Issuer’s XXXXX system) a trueknowledge, correct and complete no such actions, suits or proceedings are threatened or contemplated.
2.3.22 A copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents document, if any, filed by the Issuer with the Commission prior to since its initial registration under the date of this Subscription Agreement Exchange Act (the “SEC Documents”)) is available to the undersigned via the Commission’s XXXXX system, 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 SEC 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 Agreementamended, 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 provided, that the Issuer makes no such representation or warranty with respect to the proxy statement/prospectus included information about the Issuer’s affiliates contained in the Registration Statement Schedule 14A and related proxy materials (or other SEC document) to be filed in connection with the approval of the Merger Agreement by the stockholders of Issuer the Issuer (the “Proxy Statement/Prospectus”) or any other information relating representation and warranty in this sentence is made to the Company or any of its affiliates included in any SEC Document or filed as an exhibit theretoIssuer’s knowledge. 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 initial registration of the date hereofCommon Stock under the Exchange Act. The financial statements of the 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 Issuer as of and for the dates thereof and the results of operations and cash flows for the periods then ended, there subject, in the case of unaudited statements, to normal, year-end audit adjustments. There are no material outstanding or unresolved comments in comment letters from the staff of the Division of Corporation Finance of the Commission staff with respect to any of the SEC Documents.
2.2.8 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.
2.2.9 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.
2.2.10 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 (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 to the Issuer as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Act.
Appears in 1 contract
Samples: Share Purchase Agreement (TWC Tech Holdings II Corp.)
Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware General Corporation Law (“DGCL”), with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 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 registered with the Issuer’s transfer agent, the Shares will be validly issued, fully paid and non-assessable assessable, free and clear of all liens or other 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 amended and restated certificate of incorporation or bylaws (as amended or restated from time to time) or under the DGCL.
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 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 (including compliance by the Issuer with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain 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, 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, assets, liabilities, financial condition, or results of operations of the Issuer and its subsidiaries, taken as a whole (for such purposes, treating the Transaction as having been consummated), the validity of the Shares or the legal authority or ability of the Issuer to enter into or timely perform in all material respects its obligations under the Merger Agreement or this Subscription Agreement, subject to the exceptions in clauses Agreement (a) through (h) in the definition of Material Adverse Effect in the Merger Agreement mutatis mutandis (an a “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 body, domestic or foreign, Governmental Authority having jurisdiction over the Issuer or any of its subsidiaries or any of their respective properties that would reasonably be expected to have an Issuer Material Adverse Effect.
2.2.5 The authorized capital shares of the Issuer immediately prior to the Closing consists of (i) 50,000,000 shares of common stock, par value $0.0001 per share, and (ii) 1,000,000 shares of preferred stock, par value $0.0001 per share.
2.2.6 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Issuer to Subscriber.
2.2.7 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 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 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 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 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.
2.2.8 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.
2.2.9 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 pursuant to this Subscription Agreement under the Securities Act.
2.2.10 No Disqualification Event 2.2.6 Neither the Issuer nor any person acting on its behalf (including, without limitation, the Placement Agents, any of their respective affiliates or control persons, officers, directors, employees, agents or representatives) 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 applicable entering into the Other Subscription Agreements providing for the sale of certain shares of Class A common stock. Neither the Issuer nor any of its Affiliates has entered into any side letter agreements or other agreements or understandings (including written summaries of any oral understandings) with any Other Subscriber or other investor in connection with the transactions contemplated by the Other Subscription Agreements, other than (a) Other Subscription Agreements, (b) that certain letter agreement with the anchor investor named therein (the “Anchor Investor”)1 dated on or about the date hereof, (c) in the case of the Sponsor, certain affiliates of Altus and the Anchor Investor, the Investor Rights Agreement, and (d) the Business Combination Agreement. Other than with respect to the Other Subscription Agreement with the Sponsor, no Other Subscription Agreement includes or will include terms and conditions more advantageous to any Other Subscriber than to Subscriber hereunder and the Other Subscription Agreements reflect the same purchase price per share. The Other Subscription Agreements have not been amended in any material respect that would result in a violation of the previous sentence.
2.2.8 The authorized capital stock of the Issuer orimmediately prior to the Closing will consist of 261,000,000 shares of capital stock as follows: (a) 250,000,000 shares of Class A common stock, (b) 10,000,000 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, 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 knowledgepublic 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) 2,012,500 shares of Class B common stock are and will be issued and outstanding; (iv) up to 9,366,667 warrants to purchase up to an aggregate of 9,366,667 shares of Class A common stock (including up to 2,000,000 warrants to be issued in connection with the Second Amended and Restated Promissory Note, dated as of February 16, 2021, by and between the Issuer and the Sponsor) (the “Private Placement Warrants”) are and will be outstanding; and (v) 10,062,500 redeemable warrants to purchase an aggregate of 10,062,500 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 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 Business Combination 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 Second Merger Sub, the Issuer Covered Person 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 1 Note to Draft: Anchor Investor who has nomination rights with respect to one director, separate from the CBRE director nominee. defined below)) and (B) as contemplated by the Business Combination Agreement and the Ancillary Agreements.
2.2.9 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, except for a Disqualification Event as to which Rule 506(d)(2)(ii)-(iv(x) or (d)(3) no registration under the Securities Act is applicablerequired 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 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.
2.2.10 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 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 in order 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 and registration statement to be filed by the Issuer with respect to the Transactions or with respect to any other information relating to Altus or any of its affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has compliedtimely 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. Subscriber acknowledges that (i) the staff of the Commission issued the Staff Statement on Accounting and Reporting Considerations for Warrants Issued by Special Purpose Acquisition Companies on April 12, 2021 (the “Statement”), (ii) the Issuer continues to review the Statement and its implications, including on the financial statements and other information included in the SEC Documents, and (iii) any restatement, revision or other modification of the SEC Documents in connection with such review of the Statement or any subsequent related agreements or other guidance from the staff of the Commission shall be deemed not material for purposes of this Subscription Agreement.
2.2.11 The Issuer is in compliance with all applicable law, except where such non-compliance would not have an Issuer Material Adverse Effect. 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, an Issuer Material Adverse Effect.
2.2.12 As of the date hereof, there are no pending or, to the extent applicableknowledge of the Issuer, with any disclosure 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 Rule 506(ethis 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 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 The issued and outstanding shares of 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 (“NYSE”) under the Securities Act. symbol “CBAH.” There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer Covered Person” means, by 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 NYSE. The Issuer as an “issuer” for purposes has taken no action that is designed to terminate the registration of Rule 506 the Class A common stock under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Exchange Act.
Appears in 1 contract
Samples: Subscription Agreement (CBRE Acquisition Sponsor, LLC)
