Other General Representations Applicable to All Subscribers. The Subscriber represents and warrants and acknowledges and agrees with (on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom the Subscriber is contracting hereunder) the Issuer and its counsel (and acknowledges that the Issuer and its counsel are relying thereon) that: (a) the Subscriber has no knowledge of a “material fact” or “material change”, as those terms are defined herein, in respect of the affairs of the Issuer that has not been generally disclosed to the public; (b) the Subscriber (and, if applicable, any beneficial purchaser for whom it is acting) is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the execution page of this Subscription Agreement; (c) the Subscriber is of legal age and has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution of this Subscription Agreement on behalf of the Subscriber; (d) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound; (e) the Subscriber has duly and validly authorized, executed and delivered this Subscription Agreement and understands it is intended to constitute a valid and binding agreement of the Subscriber enforceable against the Subscriber; (f) in connection with the Subscriber’s investment in the Common Shares, the Subscriber has not relied upon the Issuer for investment, legal or tax advice, and has, in all cases sought the advice of the Subscriber’s own personal investment advisor, legal counsel and tax advisers or has waived its rights thereto and the Subscriber is either experienced in or knowledgeable with regard to the affairs of the Issuer, or either alone or with its professional advisors is capable, by reason of knowledge and experience in financial and business matters in general, and investments in particular, of evaluating the merits and risks of an investment in the Common Shares and is able to bear the economic risk of the investment and it can otherwise be reasonably assumed to have the capacity to protect its own interest in connection with the investment in the Common Shares; (g) in the case of the purchase by the Subscriber of the Common Shares as agent or trustee for a principal, the Subscriber is the duly authorized trustee or agent of such beneficial Subscriber with due and proper power and authority to execute and deliver, on behalf of such beneficial Subscriber, this Subscription Agreement and all other documentation in connection with the purchase of the Common Shares hereunder, to agree to the terms and conditions herein and therein set out and to make the representations, warranties, acknowledgements and covenants herein and therein contained, all as if such beneficial Subscriber were the Subscriber and is subscribing as principal for its own account and not for the benefit of any other person for investment only and not for resale and the Subscriber's actions as trustee or agent are in compliance with applicable law and the Subscriber and the beneficial Subscriber each acknowledge that the Issuer may be required by law to disclose to certain regulatory authorities the identity of the beneficial Subscriber of Common Shares; (h) the Subscriber is not a control person as defined under Applicable Securities Laws and will not become a control person by virtue of this subscription; (i) no person has made to the Subscriber any written or oral representations: (i) that any person will resell or repurchase the Common Shares; (ii) that any person will refund the purchase price for the Common Shares; or (iii) as to the future price or value of the Common Shares. (j) The Subscriber represents and warrants that: (i) the Common Shares are not being acquired, directly or indirectly, for the account or benefit of a Person or a person in the United States and the Subscriber does not have any agreement or understanding (either written or oral) with any U.S. Person or a person in the United States respecting: (A) the transfer or assignment of any rights or interests in any of the Common Shares; (B) the division of profits, losses, fees, commissions, or any financial stake in connection with this Subscription Agreement; or (C) the voting of the Common Shares; and (ii) the Subscriber has no intention to distribute either directly or indirectly any of the Common Shares in the United States or to U.S. Persons; (iii) the Subscriber represents that the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the U.S. Securities Act; (iv) the Subscriber is a not a “U.S. Person” and is not purchasing the Common Shares for the account or benefit of any U.S. Person or a person in the United States or for offering, resale or delivery for the account or benefit of any U.S. Person or a person in the United States; (v) the Subscriber was outside the United States at the time of execution and delivery of this Subscription Agreement within the meaning of Regulation S; (vi) no offers to sell the Common Shares were made by any person to the Subscriber while the Subscriber was in the United States; (vii) the Subscriber acknowledges that the Common Shares have not been registered under the U.S. Securities Act, and may not be offered or sold in the United States or to a U.S. Person unless an exemption from such registration requirements is available. The Subscriber understands that the Issuer has no obligation or present intention of filing a registration statement under the U.S. Securities Act in respect of the Common Shares; (viii) the Subscriber will not engage in any directed selling efforts (as defined by Regulation S under the U.S. Securities Act) in the United States in respect of the Common Shares, which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of conditioning the market in the United States for the resale of the Common Shares; (k) the funds representing the aggregate subscription price for the Common Shares which will be advanced by the Subscriber hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the Subscriber acknowledges that the Issuer may in the future be required by law to disclose the Subscriber's name and other information relating to this Subscription Agreement and the Subscriber's subscription hereunder, on a confidential basis, pursuant to such legislation. To the best of its knowledge, (a) none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to any activity that is deemed criminal under the law of Canada, the United States, or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriber; and (b) the Subscriber shall promptly notify the Issuer if the Subscriber discovers that any of such representations ceases to be true, and to provide the Issuer with appropriate information in connection therewith. Notwithstanding that the Subscriber may be purchasing the Common Shares as agent on behalf of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Issuer in order to comply with the foregoing; (l) the Subscriber will comply with Applicable Securities Laws and, if applicable, Regulation S concerning the resale of the Common Shares and all related restrictions (and the Issuer is not in any way responsible for such compliance) and will speak and consult with its own legal advisors with respect to such compliance; (m) the Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any special counsel or other advisors retained by the Subscriber) relating to the purchase of the Common Shares will be borne by the Subscriber; (n) The representations, warranties and covenants of the Subscriber herein are made with the intent that they be relied upon by the Issuer and its counsel in determining the suitability of the purchaser of Common Shares and the Subscriber agrees to indemnify, defend and hold the Issuer and its counsel harmless against all losses, claims, costs, expenses and damages or liabilities which any of them may suffer or incur caused or arising from reliance thereon. The Subscriber undertakes to immediately notify the Issuer and its counsel of any change in any statement or other information relating to the Subscriber set forth herein prior to the Closing Date.
Appears in 1 contract
Samples: Subscription Agreement
Other General Representations Applicable to All Subscribers. The Subscriber represents and warrants and acknowledges and agrees with (on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom the Subscriber is contracting hereunder) the Issuer and its counsel (and acknowledges that the Issuer and its counsel are relying thereon) that:
(a) the Subscriber has no knowledge of a “"material fact” " or “"material change”", as those terms are defined hereinin Applicable Securities Laws, in respect of the affairs of the Issuer Company that has not been generally disclosed to the public;
(b) the Subscriber (and, if applicable, any beneficial purchaser for whom it is acting) is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the execution face page of this Subscription Agreement;
(c) the Subscriber is of legal age and has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution of this Subscription Agreement on behalf of the Subscriber;
(d) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(e) the Subscriber has duly and validly authorized, executed and delivered this Subscription Agreement and understands it is intended to constitute a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(f) in connection with the Subscriber’s 's investment in the Common SharesUnits, the Subscriber has not relied upon the Issuer Company for investment, legal or tax advice, and has, in all cases sought the advice of the Subscriber’s 's own personal investment advisor, legal counsel and tax advisers or has waived its rights thereto to and the Subscriber is either experienced in or knowledgeable with regard to the affairs of the IssuerCompany, or either alone or with its professional advisors is capable, by reason of knowledge and experience in financial and business matters in general, and investments in particular, of evaluating the merits and risks of an investment in the Common Shares Units and is able to bear the economic risk of the investment and it can otherwise be reasonably assumed to have the capacity to protect its own interest in connection with the investment in the Common SharesUnits;
(g) in the case of the purchase by the Subscriber of the Common Shares as agent or trustee for a principal, the Subscriber is the duly authorized trustee or agent of such beneficial Subscriber with due and proper power and authority to execute and deliver, on behalf of such beneficial Subscriber, this Subscription Agreement and all other documentation in connection with the purchase of the Common Shares hereunder, to agree to the terms and conditions herein and therein set out and to make the representations, warranties, acknowledgements and covenants herein and therein contained, all as if such beneficial Subscriber were the Subscriber and is subscribing as principal for its own account and not for the benefit of any other person for investment only and not for resale and the Subscriber's actions as trustee or agent are in compliance with applicable law and the Subscriber and the beneficial Subscriber each acknowledge that the Issuer may be required by law to disclose to certain regulatory authorities the identity of the beneficial Subscriber of Common Shares;
(h) the Subscriber is not a control person as defined under Applicable Securities Laws and will not become a control person by virtue of this subscription;
(i) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase the Common SharesUnits;
(ii) that any person will refund the purchase price for the Common Shares; orUnits;
(iii) as to the future price or value of the Common Shares.Units; or
(jiv) The that the Units will be listed and posted for trading on any stock exchange or that application has been made to list the common shares of the Company on any stock exchange; Not A U.S. Person
(h) UNLESS the Subscriber completes the certificate of U.S. Person included herein as Schedule C, the Subscriber represents and warrants that:
(i) the Common Shares Securities are not being acquired, directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States and the Subscriber does not have any agreement or understanding (either written or oral) with any U.S. Person or a person in the United States respecting:
(A) the transfer or assignment of any rights or interests in any of the Common SharesSecurities;
(B) the division of profits, losses, fees, commissions, or any financial stake in connection with this Subscription AgreementSubscription; or
(C) the voting of the Common SharesSecurities; and
(ii) the Subscriber has no intention to distribute either directly or indirectly any of the Common Shares Securities in the United States or to U.S. Persons;; and
(iii) the Subscriber represents that the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the U.S. Securities Act;; U.S. Subscribers - U.S. Person Certificate Required
(ivi) UNLESS the Subscriber has executed and delivered to the Company herewith the certifications set forth in the certificate of U.S. Person attached hereto as Schedule C, the Subscriber represents and warrants that:
(i) the Subscriber is a not a “"U.S. Person” " (the definition of which includes, but is not limited to, a natural person resident in the United States and an estate or trust of which any executor or administrator or trustee, respectively, is a U.S. Person and any partnership or corporation organized or incorporated under the laws of the United States) and is not purchasing the Common Shares Units for the account or benefit of any U.S. Person or a person in the United States or for offering, resale or delivery for the account or benefit of any U.S. Person or a for the account or benefit of any person in any jurisdiction other than the United States;jurisdiction set out in the name and address of the Subscriber below; or
(vii) the Subscriber was outside the United States at the time of execution and delivery of this Subscription Agreement subscription agreement within the meaning of Regulation S;; and
(viiii) no offers to sell the Common Shares Securities were made by any person to the Subscriber while the Subscriber was in the United States;
(viiiv) the Subscriber acknowledges that the Common Shares Units have not been registered under the U.S. Securities Act, and may not be offered or sold in the United States or to a U.S. Person unless an exemption from such registration requirements is available. The Subscriber understands that the Issuer Company has no obligation or present intention of filing a registration statement under the U.S. Securities Act in respect of the Common SharesSecurities;
(viiiv) the Subscriber will not engage in any directed selling efforts (as defined by Regulation S under the U.S. Securities Act) in the United States in respect of the Common SharesSecurities, which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of of, conditioning the market in the United States for the resale of the Common SharesSecurities;
(kvi) the funds representing the aggregate subscription price for the Common Shares which will be advanced by the Subscriber hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the Subscriber acknowledges that the Issuer may in the future any person who exercises a Warrant will be required by law to disclose provide to the Subscriber's name Company either:
(A) written certification that it is not a U.S. Person and that such Warrant is not being exercised within the United States or on behalf of, or for the account or benefit of; a U.S. Person; or
(B) a written opinion of counsel or other information relating evidence satisfactory to this Subscription Agreement the Company to the effect that the Warrants and the Subscriber's subscription hereunder, on a confidential basis, pursuant to such legislation. To the best of its knowledge, (a) none of the subscription funds to be provided by the Subscriber (i) Warrant Shares have been or will be derived from or related to any activity that is deemed criminal registered under the law of Canada, the United States, U.S. Securities Act and applicable state securities laws or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriberexempt from registration thereunder; and (b) the Subscriber shall promptly notify the Issuer if the Subscriber discovers that any of such representations ceases to be true, and to provide the Issuer Compliance with appropriate information in connection therewith. Notwithstanding that the Subscriber may be purchasing the Common Shares as agent on behalf of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Issuer in order to comply with the foregoing;Local Laws
(lj) the Subscriber will comply with Applicable Securities Laws and, if applicable, Regulation S concerning the resale of the Common Shares Securities and all related restrictions (and the Issuer Company is not in any way responsible for such compliance) and will shall speak and consult with its own legal advisors with respect to such compliance;; Own Expense
(mk) the Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any special counsel or other advisors retained by the Subscriber) relating to the purchase of the Common Shares will Units shall be borne by the Subscriber; International Subscriber
(l) if the Subscriber is resident of an International Jurisdiction (meaning herein a country other than Canada or the United States) then:
(i) the Subscriber is knowledgeable of securities legislation having application or jurisdiction over the Subscriber and the Offering (other than the laws of Canada and the U.S.) which would apply to this subscription;
(nii) The representations, warranties and covenants of the Subscriber herein are made with is purchasing the intent Units pursuant to exemptions from any prospectus, registration or similar requirements under the laws of that they be relied upon by International Jurisdiction and or, if such is not applicable, the Issuer and its counsel in determining Subscriber is permitted to purchase the suitability of the purchaser of Common Shares Subscriber's Units, and the Subscriber agrees Company has no filing obligations in the International Jurisdiction;
(iii) no laws in the International Jurisdiction require the Company to indemnify, defend and hold the Issuer and its counsel harmless against all losses, claims, costs, expenses and damages make any filings or liabilities which seek any of them may suffer or incur caused or arising from reliance thereon. The Subscriber undertakes to immediately notify the Issuer and its counsel approvals of any change kind whatsoever from any regulatory authority of any kind whatsoever in any statement or other information relating the International Jurisdiction; and
(iv) the Units are being acquired for investment only and not with a view to resale and distribution within the Subscriber set forth herein prior to the Closing DateInternational Jurisdiction.
Appears in 1 contract
Samples: Unit Subscription Agreement (Trans Orient Petroleum LTD/)
Other General Representations Applicable to All Subscribers. The Subscriber represents and warrants and acknowledges and agrees with (on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom the Subscriber is contracting hereunder) the Issuer and its counsel (and acknowledges that the Issuer and its counsel are relying thereon) that:
(a) the Subscriber has no knowledge of a “material fact” or “material change”, as those terms are defined herein, in respect of the affairs of the Issuer that has not been generally disclosed to the public;
(b) the Subscriber (and, if applicable, any beneficial purchaser for whom it is acting) is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the execution page 1 of this Subscription Agreement;
(cb) the Subscriber is of legal age and has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, and it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution of this Subscription Agreement on behalf of the Subscriber;
(dc) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(ed) the Subscriber has duly and validly authorized, executed and delivered this Subscription Agreement and understands it is intended to constitute a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(fe) in connection with the Subscriber’s investment in the Common SharesUnits, the Subscriber has not relied upon the Issuer for investment, legal or tax advice, and has, in all cases sought the advice of the Subscriber’s own personal investment advisor, legal counsel and tax advisers or has waived its rights thereto and the Subscriber is either experienced in or knowledgeable with regard to the affairs of the Issuer, or either alone or with its professional advisors is capable, by reason of knowledge and experience in financial and business matters in general, and investments in particular, of evaluating the merits and risks of an investment in the Common Shares and is able to bear the economic risk of the investment and it can otherwise be reasonably assumed to have the capacity to protect its own interest in connection with the investment in the Common Sharesthereto;
(g) in the case of the purchase by the Subscriber of the Common Shares as agent or trustee for a principal, the Subscriber is the duly authorized trustee or agent of such beneficial Subscriber with due and proper power and authority to execute and deliver, on behalf of such beneficial Subscriber, this Subscription Agreement and all other documentation in connection with the purchase of the Common Shares hereunder, to agree to the terms and conditions herein and therein set out and to make the representations, warranties, acknowledgements and covenants herein and therein contained, all as if such beneficial Subscriber were the Subscriber and is subscribing as principal for its own account and not for the benefit of any other person for investment only and not for resale and the Subscriber's actions as trustee or agent are in compliance with applicable law and the Subscriber and the beneficial Subscriber each acknowledge that the Issuer may be required by law to disclose to certain regulatory authorities the identity of the beneficial Subscriber of Common Shares;
(h) the Subscriber is not a control person as defined under Applicable Securities Laws and will not become a control person by virtue of this subscription;
(if) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase the Common SharesUnits;
(ii) that any person will refund the purchase price for the Common Shares; orUnits;
(iii) as to the future price or value of the Common Shares.Units; or
(jiv) that the Units will be listed and posted for trading on a stock exchange or that application has been made to list and post the Units for trading on a stock exchange, other than the TSX-V;
(g) The Subscriber represents and warrants that:
(i) the Common Shares Securities are not being acquired, directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States and the Subscriber does not have any agreement or understanding (either written or oral) with any U.S. Person or a person in the United States respecting:
(A) the transfer or assignment of any rights or interests in any of the Common SharesSecurities;
(B) the division of profits, losses, fees, commissions, or any financial stake in connection with this Subscription Agreement; or
(C) the voting of the Common SharesSecurities; and
(ii) the Subscriber has no intention to distribute either directly or indirectly any of the Common Shares Securities in the United States or to U.S. Persons;
(iii) the Subscriber represents that the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the U.S. Securities Act;
(iv) the Subscriber is a not a “U.S. Person” and is not purchasing the Common Shares Securities for the account or benefit of any U.S. Person or a person in the United States or for offering, resale or delivery for the account or benefit of any U.S. Person or a person in the United States;
(v) the Subscriber was outside the United States at the time of execution and delivery of this Subscription Agreement within the meaning of Regulation SAgreement;
(vi) no offers to sell the Common Shares Securities were made by any person to the Subscriber while the Subscriber was in the United States;
(vii) the Subscriber acknowledges that the Common Shares Securities have not been registered under the U.S. Securities Act, and may not be offered or sold in the United States or to a U.S. Person unless an exemption from such registration requirements is available. The Subscriber understands that the Issuer has no obligation or present intention of filing a registration statement under the U.S. Securities Act in respect of the Common SharesSecurities;
(viii) unless otherwise permitted by applicable securities laws, the Subscriber will not engage in any directed selling efforts (as defined by Regulation S under the U.S. Securities Act) in the United States in respect of the Common SharesSecurities, which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of conditioning the market in the United States for the resale of the Common Shares;Securities; and
(kix) the funds representing the aggregate subscription price for the Common Shares which will be advanced by the Subscriber hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the Subscriber acknowledges that any person who exercises a Warrant will be required to provide to the Issuer may in either:
(A) written certification that it is not a U.S. Person and that such Warrant is not being exercised within the future be required by law United States or on behalf of, or for the account or benefit of; a U.S. Person; or
(B) a written opinion of counsel or other evidence satisfactory to disclose the Subscriber's name and other information relating Issuer, acting reasonably, to this Subscription Agreement and the Subscriber's subscription hereunder, on a confidential basis, pursuant to such legislation. To effect that the best of its knowledge, (a) none of the subscription funds to be provided by the Subscriber (i) Warrant Shares have been or will be derived from or related to any activity that is deemed criminal registered under the law of Canada, the United States, U.S. Securities Act and applicable state securities laws or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriber; and (b) the Subscriber shall promptly notify the Issuer if the Subscriber discovers that any of such representations ceases to be true, and to provide the Issuer with appropriate information in connection therewith. Notwithstanding that the Subscriber may be purchasing the Common Shares as agent on behalf of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Issuer in order to comply with the foregoingexempt from registration thereunder;
(lh) the Subscriber will comply with Applicable Securities Laws and, if applicable, Rule 904 of Regulation S concerning the resale of the Common Shares Securities and all related restrictions (and the Issuer is not in any way responsible for such compliance) and will speak and consult with its own legal advisors with respect to such compliance;
(mi) the Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any special counsel or other advisors retained by the Subscriber) relating to the purchase of the Common Shares Units will be borne by the Subscriber;
(nj) The representations, warranties and covenants of foregoing acknowledgements are made by the Subscriber herein are made with the intent that they be relied upon by the Issuer and its counsel in determining the its suitability as a purchaser of the purchaser of Common Shares Units, and the Subscriber hereby agrees to indemnify, defend and hold indemnify the Issuer and its counsel harmless against all losses, claims, costs, expenses and damages or liabilities which any of them the Issuer may suffer or incur caused or arising from reliance thereon. The Subscriber undertakes to immediately notify the Issuer and its counsel as a result of any change such acknowledgement being untrue in any statement or other information relating to the Subscriber set forth herein prior to the Closing Datematerial respect.
Appears in 1 contract
Samples: Unit Subscription Agreement
Other General Representations Applicable to All Subscribers. The Subscriber represents and warrants and acknowledges and agrees with (on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom the Subscriber is contracting hereunder) to the Issuer that, as of the date of this Subscription Agreement and its counsel (and acknowledges that the Issuer and its counsel are relying thereon) thatat Closing hereunder:
(a) the Subscriber has no knowledge of a “material fact” or “material change”, as those terms are defined herein, in respect of the affairs of the Issuer that has not been generally disclosed to the public;
(b) the Subscriber (and, if applicable, any beneficial purchaser for whom it is acting) is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the execution page of this Subscription Agreement;
(c) the Subscriber is of legal age and has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution of this Subscription Agreement on behalf of the Subscriber;
(d) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(e) the Subscriber has duly and validly authorized, executed and delivered this Subscription Agreement and understands it is intended to constitute a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(f) in connection with the Subscriber’s investment in the Common SharesUnits, the Subscriber has not relied upon the Issuer for investment, legal or tax advice, and has, in all cases sought the advice of the Subscriber’s own personal investment advisor, legal counsel and tax advisers or has waived its rights thereto and the Subscriber is either experienced in or knowledgeable with regard to the affairs of the Issuer, or either alone or with its professional advisors is capable, by reason of knowledge and experience in financial and business matters in general, and investments in particular, of evaluating the merits and risks of an investment in the Common Shares Units and is able to bear the economic risk of the investment and it can otherwise be reasonably assumed to have the capacity to protect its own interest in connection with the investment in the Common SharesUnits;
(g) in the case of the purchase by the Subscriber of the Common Shares as agent or trustee for a principal, the Subscriber is the duly authorized trustee or agent of such beneficial Subscriber with due and proper power and authority to execute and deliver, on behalf of such beneficial Subscriber, this Subscription Agreement and all other documentation in connection with the purchase of the Common Shares hereunder, to agree to the terms and conditions herein and therein set out and to make the representations, warranties, acknowledgements and covenants herein and therein contained, all as if such beneficial Subscriber were the Subscriber and is subscribing as principal for its own account and not for the benefit of any other person for investment only and not for resale and the Subscriber's actions as trustee or agent are in compliance with applicable law and the Subscriber and the beneficial Subscriber each acknowledge that the Issuer may be required by law to disclose to certain regulatory authorities the identity of the beneficial Subscriber of Common Shares;
(h) the Subscriber is not a control person as defined under Applicable Securities Laws and will not become a control person by virtue of this subscription;
(i) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase the Common SharesShares or Warrants;
(ii) that any person will refund the purchase price for the Common Shares; orUnits;
(iii) as to the future price or value of the Common Shares.Shares or Warrants; or
(jiv) that the Shares or Warrants will be listed and posted for trading on a stock exchange or that application has been made to list and post the Shares or Warrants for trading on a stock exchange, other than the Exchange;
(h) The Subscriber represents and warrants that:
(i) the Common Shares Units are not being acquired, directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States and the Subscriber does not have any agreement or understanding (either written or oral) with any U.S. Person or a person in the United States respecting:
(A) the transfer or assignment of any rights or interests in any of the Common SharesShares or Warrants;
(B) the division of profits, losses, fees, commissions, or any financial stake in connection with this Subscription Agreement; or
(C) the voting of the Common Shares; and
(ii) the Subscriber has no intention to distribute either directly or indirectly any of the Common Shares or Warrants in the United States or to U.S. Persons;
(iii) the Subscriber represents that the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the U.S. Securities Act;
(iv) the Subscriber is a not a “U.S. Person” and is not purchasing the Common Shares Units for the account or benefit of any U.S. Person or a person in the United States or for offering, resale or delivery for the account or benefit of any U.S. Person or a person in the United States;
(v) the Subscriber was outside the United States at the time of execution and delivery of this Subscription Agreement within the meaning of Regulation S;
(vi) no offers to sell the Common Shares Units were made by any person to the Subscriber while the Subscriber was in the United States;
(vii) the Subscriber acknowledges that the Common Shares or Warrants have not been registered under the U.S. Securities Act, and may not be offered or sold in the United States or to a U.S. Person unless an exemption from such registration requirements is available. The Subscriber understands that the Issuer has no obligation or present intention of filing a registration statement under the U.S. Securities Act in respect of the Common SharesSecurities;
(viii) the Subscriber will not engage in any directed selling efforts (as defined by Regulation S under the U.S. Securities Act) in the United States in respect of the Common SharesUnits, which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of conditioning the market in the United States for the resale of the Common Shares;
(k) the funds representing the aggregate subscription price for the Common Shares which will be advanced by the Subscriber hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the Subscriber acknowledges that the Issuer may in the future be required by law to disclose the Subscriber's name and other information relating to this Subscription Agreement and the Subscriber's subscription hereunder, on a confidential basis, pursuant to such legislation. To the best of its knowledge, (a) none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to any activity that is deemed criminal under the law of Canada, the United States, or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the SubscriberWarrants; and (b) the Subscriber shall promptly notify the Issuer if the Subscriber discovers that any of such representations ceases to be true, and to provide the Issuer with appropriate information in connection therewith. Notwithstanding that the Subscriber may be purchasing the Common Shares as agent on behalf of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Issuer in order to comply with the foregoing;
(l) the Subscriber will comply with Applicable Securities Laws and, if applicable, Regulation S concerning the resale of the Common Shares and all related restrictions (and the Issuer is not in any way responsible for such compliance) and will speak and consult with its own legal advisors with respect to such compliance;
(m) the Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any special counsel or other advisors retained by the Subscriber) relating to the purchase of the Common Shares will be borne by the Subscriber;
(n) The representations, warranties and covenants of the Subscriber herein are made with the intent that they be relied upon by the Issuer and its counsel in determining the suitability of the purchaser of Common Shares and the Subscriber agrees to indemnify, defend and hold the Issuer and its counsel harmless against all losses, claims, costs, expenses and damages or liabilities which any of them may suffer or incur caused or arising from reliance thereon. The Subscriber undertakes to immediately notify the Issuer and its counsel of any change in any statement or other information relating to the Subscriber set forth herein prior to the Closing Date.
Appears in 1 contract
Samples: Subscription Agreement
Other General Representations Applicable to All Subscribers. The Subscriber represents and warrants and acknowledges and agrees with (on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom the Subscriber is contracting hereunder) the Issuer and its counsel (and acknowledges that the Issuer and its counsel are relying thereon) that:
(a) the Subscriber has no knowledge of a “material fact” or “material change”, as those terms are defined herein, in respect of the affairs of the Issuer that has not been generally disclosed to the public;
(b) the Subscriber (and, if applicable, any beneficial purchaser for whom it is acting) is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the execution page of this Subscription Agreement;
(c) the Subscriber is of legal age and has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution of this Subscription Agreement on behalf of the Subscriber;
(d) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(e) the Subscriber has duly and validly authorized, executed and delivered this Subscription Agreement and understands it is intended to constitute a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(f) in connection with the Subscriber’s investment in the Common SharesUnits, the Subscriber has not relied upon the Issuer for investment, legal or tax advice, and has, in all cases sought the advice of the Subscriber’s own personal investment advisor, legal counsel and tax advisers or has waived its rights thereto and the Subscriber is either experienced in or knowledgeable with regard to the affairs of the Issuer, or either alone or with its professional advisors is capable, by reason of knowledge and experience in financial and business matters in general, and investments in particular, of evaluating the merits and risks of an investment in the Common Shares Units and is able to bear the economic risk of the investment and it can otherwise be reasonably assumed to have the capacity to protect its own interest in connection with the investment in the Common SharesUnits;
(g) in the case of the purchase by the Subscriber of the Common Shares as agent or trustee for a principal, the Subscriber is the duly authorized trustee or agent of such beneficial Subscriber with due and proper power and authority to execute and deliver, on behalf of such beneficial Subscriber, this Subscription Agreement and all other documentation in connection with the purchase of the Common Shares hereunder, to agree to the terms and conditions herein and therein set out and to make the representations, warranties, acknowledgements and covenants herein and therein contained, all as if such beneficial Subscriber were the Subscriber and is subscribing as principal for its own account and not for the benefit of any other person for investment only and not for resale and the Subscriber's actions as trustee or agent are in compliance with applicable law and the Subscriber and the beneficial Subscriber each acknowledge that the Issuer may be required by law to disclose to certain regulatory authorities the identity of the beneficial Subscriber of Common Shares;
(h) the Subscriber is not a control person as defined under Applicable Securities Laws and will not become a control person by virtue of this subscription;
(i) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase the Common SharesUnits;
(ii) that any person will refund the purchase price for the Common Shares; orUnits;
(iii) as to the future price or value of the Common Shares.Units; or
(jiv) The that the Units will be listed and posted for trading on a stock exchange or that application has been made to list and post the Units for trading on a stock exchange, other than the Exchange;
(h) Unless the Subscriber completes the U.S. Purchaser Certificate included herein as Schedule B (in which case the Subscriber represents, warrants and covenants to the Issuer as to the accuracy of all matters set out therein) in connection with a purchase of the Securities made in reliance on Regulation D, the Subscriber represents and warrants that:
(i) the Common Shares Securities are not being acquired, directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States and the Subscriber does not have any agreement or understanding (either written or oral) with any U.S. Person or a person in the United States respecting:
(A) the transfer or assignment of any rights or interests in any of the Common SharesSecurities;
(B) the division of profits, losses, fees, commissions, or any financial stake in connection with this Subscription Agreement; or
(C) the voting of the Common SharesSecurities; and
(ii) the Subscriber has no intention to distribute either directly or indirectly any of the Common Shares Securities in the United States or to U.S. Persons;
(iii) the Subscriber represents that the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the U.S. Securities Act;
(iv) the Subscriber is a not a “U.S. Person” and is not purchasing the Common Shares Securities for the account or benefit of any U.S. Person or a person in the United States States, or for offering, resale or delivery for the account or benefit of any U.S. Person or a person in the United States;
(v) the Subscriber was outside the United States at the time of execution and delivery of this Subscription Agreement within the meaning of Regulation S;
(vi) no offers to sell the Common Shares Securities were made by any person to the Subscriber while the Subscriber was in the United States;
(vii) the Subscriber acknowledges that the Common Shares Securities have not been and will not be registered under the U.S. Securities ActAct or the securities laws of any state of the United States, and that the Securities may not be offered or sold in the United States States, or to or for the account or benefit of a U.S. Person or a person in the United States, unless an exemption from such registration requirements is available. The Subscriber understands that the Issuer has no obligation or present intention of filing a registration statement under the U.S. Securities Act in respect of the Common SharesSecurities;
(viii) the Subscriber will not engage in any directed selling efforts (as defined by Regulation S under the U.S. Securities Act) in the United States in respect of the Common SharesSecurities, which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of conditioning the market in the United States for the resale of the Common Shares;Securities; and
(kix) the funds representing the aggregate subscription price for the Common Shares which will be advanced by the Subscriber hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the Subscriber acknowledges that any person who exercises a Warrant will be required to provide to the Issuer may either:
(A) written certification that it is not a U.S. Person and that such Warrant is not being exercised within the United States or on behalf of, or for the account or benefit of: a U.S. Person or a person in the future be required by law to disclose the Subscriber's name and other information relating to this Subscription Agreement and the Subscriber's subscription hereunder, on a confidential basis, pursuant to such legislation. To the best of its knowledge, (a) none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to any activity that is deemed criminal under the law of Canada, the United States, ; or
(B) a written opinion of counsel or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified evidence satisfactory to the Subscriber; and (b) Issuer to the Subscriber shall promptly notify the Issuer if the Subscriber discovers that any of such representations ceases to be true, and to provide the Issuer with appropriate information in connection therewith. Notwithstanding effect that the Subscriber may be purchasing Warrant Shares have been registered under the Common Shares as agent on behalf of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Issuer in order to comply with the foregoingU.S. Securities Act and applicable state securities laws or are exempt from registration thereunder;
(li) the Subscriber will comply with Applicable Securities Laws and, if applicable, Rule 904 of Regulation S concerning the resale of the Common Shares Securities and all related restrictions (and the Issuer is not in any way responsible for such compliance) and will speak and consult with its own legal advisors with respect to such compliance;
(mj) the Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any special counsel or other advisors retained by the Subscriber) relating to the purchase of the Common Shares Units will be borne by the Subscriber;
(n) The representations, warranties and covenants of the Subscriber herein are made with the intent that they be relied upon by the Issuer and its counsel in determining the suitability of the purchaser of Common Shares and the Subscriber agrees to indemnify, defend and hold the Issuer and its counsel harmless against all losses, claims, costs, expenses and damages or liabilities which any of them may suffer or incur caused or arising from reliance thereon. The Subscriber undertakes to immediately notify the Issuer and its counsel of any change in any statement or other information relating to the Subscriber set forth herein prior to the Closing Date.
Appears in 1 contract
Samples: Subscription Agreement
Other General Representations Applicable to All Subscribers. The Subscriber represents and warrants and acknowledges and agrees with (on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom the Subscriber is contracting hereunder) the Issuer and its counsel (and acknowledges that the Issuer and its counsel are relying thereon) that:
(a) the Subscriber has no knowledge of a “material fact” or “material change”, as those terms are defined herein, in respect of the affairs of the Issuer that has not been generally disclosed to the public;
(b) the Subscriber (and, if applicable, any beneficial purchaser for whom it is acting) is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the execution page of this Subscription Agreement;
(c) the Subscriber is of legal age and has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution of this Subscription Agreement on behalf of the Subscriber;
(d) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(e) the Subscriber has duly and validly authorized, executed and delivered this Subscription Agreement and understands it is intended to constitute a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(f) in connection with the Subscriber’s investment in the Common Shares, the Subscriber has not relied upon the Issuer for investment, legal or tax advice, and has, in all cases sought the advice of the Subscriber’s own personal investment advisor, legal counsel and tax advisers or has waived its rights thereto and the Subscriber is either experienced in or knowledgeable with regard to the affairs of the Issuer, or either alone or with its professional advisors is capable, by reason of knowledge and experience in financial and business matters in general, and investments in particular, of evaluating the merits and risks of an investment in the Common Shares and is able to bear the economic risk of the investment and it can otherwise be reasonably assumed to have the capacity to protect its own interest in connection with the investment in the Common Shares;
(g) in the case of the purchase by the Subscriber of the Common Shares as agent or trustee for a principal, the Subscriber is the duly authorized trustee or agent of such beneficial Subscriber with due and proper power and authority to execute and deliver, on behalf of such beneficial Subscriber, this Subscription Agreement and all other documentation in connection with the purchase of the Common Shares hereunder, to agree to the terms and conditions herein and therein set out and to make the representations, warranties, acknowledgements and covenants herein and therein contained, all as if such beneficial Subscriber were the Subscriber and is subscribing as principal for its own account and not for the benefit of any other person for investment only and not for resale and the Subscriber's actions as trustee or agent are in compliance with applicable law and the Subscriber and the beneficial Subscriber each acknowledge that the Issuer may be required by law to disclose to certain regulatory authorities the identity of the beneficial Subscriber of Common Shares;
(h) the Subscriber is not a control person as defined under Applicable Securities Laws and will not become a control person by virtue of this subscription;
(i) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase the Common Shares;
(ii) that any person will refund the purchase price for the Common Shares; or;
(iii) as to the future price or value of the Common Shares.; or
(jiv) The that the Common Shares will be listed and posted for trading on a stock exchange or that application has been made to list and post the Common Shares for trading on a stock exchange; Not a person in the United States or a U.S. Person
(h) Unless the Subscriber completes the U.S. Purchaser Certificate included herein as Schedule C (in which case the Subscriber represents, warrants and covenants to the Issuer as to the accuracy of all matters set out therein) in connection with a purchase of the Common Shares made in reliance on Regulation D, the Subscriber represents and warrants that:
(i) the Common Shares are not being acquired, directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States and the Subscriber does not have any agreement or understanding (either written or oral) with any U.S. Person or a person in the United States respecting:
(A) the transfer or assignment of any rights or interests in any of the Common Shares;
(B) the division of profits, losses, fees, commissions, or any financial stake in connection with this Subscription Agreement; or
(C) the voting of the Common Shares; and
(ii) the Subscriber has no intention to distribute either directly or indirectly any of the Common Shares in the United States or to U.S. Persons;
(iii) the Subscriber represents that the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the U.S. Securities Act;
(iv) the Subscriber is a not a “U.S. Person” and is not purchasing the Common Shares for the account or benefit of any U.S. Person or a person in the United States or for offering, resale or delivery for the account or benefit of any U.S. Person or a person in the United States;
(v) the Subscriber was outside the United States at the time of execution and delivery of this Subscription Agreement within the meaning of Regulation S;
(vi) no offers to sell the Common Shares were made by any person to the Subscriber while the Subscriber was in the United States;
(vii) the Subscriber acknowledges that the Common Shares have not been registered under the U.S. Securities Act, and may not be offered or sold in the United States or to a U.S. Person unless an exemption from such registration requirements is available. The Subscriber understands that the Issuer has no obligation or present intention of filing a registration statement under the U.S. Securities Act in respect of the Common Shares;; and
(viii) the Subscriber will not engage in any directed selling efforts (as defined by Regulation S under the U.S. Securities Act) in the United States in respect of the Common Shares, which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of conditioning the market in the United States for the resale of the Common Shares;. Compliance with Resale Laws
(k) the funds representing the aggregate subscription price for the Common Shares which will be advanced by the Subscriber hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the Subscriber acknowledges that the Issuer may in the future be required by law to disclose the Subscriber's name and other information relating to this Subscription Agreement and the Subscriber's subscription hereunder, on a confidential basis, pursuant to such legislation. To the best of its knowledge, (a) none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to any activity that is deemed criminal under the law of Canada, the United States, or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriber; and (b) the Subscriber shall promptly notify the Issuer if the Subscriber discovers that any of such representations ceases to be true, and to provide the Issuer with appropriate information in connection therewith. Notwithstanding that the Subscriber may be purchasing the Common Shares as agent on behalf of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Issuer in order to comply with the foregoing;
(l) the Subscriber will comply with Applicable Securities Laws and, if applicable, Rule 904 of Regulation S concerning the resale of the Common Shares and all related restrictions (and the Issuer is not in any way responsible for such compliance) and will speak and consult with its own legal advisors with respect to such compliance;; Own Expense
(mj) the Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any special counsel or other advisors retained by the Subscriber) relating to the purchase of the Common Shares will be borne by the Subscriber;; and Indemnity
(nk) The representations, warranties and covenants of the foregoing acknowledgements are made by the Subscriber herein are made with the intent that they be relied upon by the Issuer and its counsel in determining the its suitability as a purchaser of the purchaser of Common Shares Shares, and the Subscriber hereby agrees to indemnify, defend and hold indemnify the Issuer and its counsel harmless against all losses, claims, costs, expenses and damages or liabilities which any of them the Issuer may suffer or incur caused or arising from as a result of reliance thereon. The Subscriber undertakes to immediately notify the Issuer and its counsel of any change in any statement or other information relating to the Subscriber set forth herein prior to the Closing Date.
Appears in 1 contract
Samples: Common Share Subscription Agreement (Modern Mining Technology Corp.)
Other General Representations Applicable to All Subscribers. The Subscriber represents and warrants and acknowledges and agrees with (on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom the Subscriber is contracting hereunder) the Issuer and its counsel (and acknowledges that the Issuer and its counsel are relying thereon) that:
(a) the Subscriber has no knowledge of a “material fact” or “material change”, as those terms are defined herein, in respect of the affairs of the Issuer that has not been generally disclosed to the public;
(b) the Subscriber (and, if applicable, any beneficial purchaser for whom it is acting) is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the execution page of this Subscription Agreement;
(c) the Subscriber is of legal age and has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution of this Subscription Agreement on behalf of the Subscriber;
(d) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(e) the Subscriber has duly and validly authorized, executed and delivered this Subscription Agreement and understands it is intended to constitute a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(f) in connection with the Subscriber’s investment in the Common SharesUnits, the Subscriber has not relied upon the Issuer for investment, legal or tax advice, and has, in all cases sought the advice of the Subscriber’s own personal investment advisor, legal counsel and tax advisers or has waived its rights thereto and the Subscriber is either experienced in or knowledgeable with regard to the affairs of the Issuer, or either alone or with its professional advisors is capable, by reason of knowledge and experience in financial and business matters in general, and investments in particular, of evaluating the merits and risks of an investment in the Common Shares Units and is able to bear the economic risk of the investment and it can otherwise be reasonably assumed to have the capacity to protect its own interest in connection with the investment in the Common SharesUnits;
(g) in the case of the purchase by the Subscriber of the Common Shares as agent or trustee for a principal, the Subscriber is the duly authorized trustee or agent of such beneficial Subscriber with due and proper power and authority to execute and deliver, on behalf of such beneficial Subscriber, this Subscription Agreement and all other documentation in connection with the purchase of the Common Shares hereunder, to agree to the terms and conditions herein and therein set out and to make the representations, warranties, acknowledgements and covenants herein and therein contained, all as if such beneficial Subscriber were the Subscriber and is subscribing as principal for its own account and not for the benefit of any other person for investment only and not for resale and the Subscriber's actions as trustee or agent are in compliance with applicable law and the Subscriber and the beneficial Subscriber each acknowledge that the Issuer may be required by law to disclose to certain regulatory authorities the identity of the beneficial Subscriber of Common Shares;
(h) the Subscriber is not a control person as defined under Applicable Securities Laws and will not become a control person by virtue of this subscription;
(i) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase the Common SharesUnits;
(ii) that any person will refund the purchase price for the Common Shares; orUnits;
(iii) as to the future price or value of the Common Shares.Units; or
(jiv) The that the Units will be listed and posted for trading on a stock exchange or that application has been made to list and post the Units for trading on a stock exchange, other than the TSX-V;
(h) Unless the Subscriber completes the U.S. Accredited Investor Certificate included herein as Schedule E (in which case the Subscriber represents, warrants and covenants to the Issuer as to the accuracy of all matters set out therein) in connection with a purchase of the Securities made in reliance on Regulation D, the Subscriber represents and warrants that:
(i) the Common Shares Securities are not being acquired, directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States and the Subscriber does not have any agreement or understanding (either written or oral) with any U.S. Person or a person in the United States respecting:
(A) the transfer or assignment of any rights or interests in any of the Common SharesSecurities;
(B) the division of profits, losses, fees, commissions, or any financial stake in connection with this Subscription Agreement; or
(C) the voting of the Common SharesSecurities; and
(iiD) the Subscriber has no intention to distribute either directly or indirectly any of the Common Shares in the United States or to U.S. Persons;
(iiiii) the Subscriber represents that the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the U.S. Securities Act;
(iviii) the Subscriber is a not a “U.S. Person” (the definition of which includes, but is not limited to, a natural person resident in the United States and an estate or trust of which any executor or administrator or trustee, respectively, is a U.S. Person and any partnership or corporation organized or incorporated under the laws of the United States) and is not purchasing the Common Shares Securities for the account or benefit of any U.S. Person or a person in the United States or for offering, resale or delivery for the account or benefit of any U.S. Person or a for the account or benefit of any person in any jurisdiction set out in the United States;name and address of the Subscriber below; or
(viv) the Subscriber was outside the United States at the time of execution and delivery of this Subscription Agreement within the meaning of Regulation S;
(viv) no offers to sell the Common Shares Securities were made by any person to the Subscriber while the Subscriber was in the United States;
(viivi) the Subscriber acknowledges that the Common Shares Securities have not been registered under the U.S. Securities Act, and may not be offered or sold in the United States or to a U.S. Person unless an exemption from such registration requirements is available. The Subscriber understands that the Issuer has no obligation or present intention of filing a registration statement under the U.S. Securities Act in respect of the Common SharesSecurities;
(viiivii) the Subscriber will not engage in any directed selling efforts (as defined by Regulation S under the U.S. Securities Act) in the United States in respect of the Common SharesSecurities, which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of conditioning the market in the United States for the resale of the Common Shares;Securities; and
(kviii) the funds representing the aggregate subscription price for the Common Shares which will be advanced by the Subscriber hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the Subscriber acknowledges that any person who exercises a Warrant will be required to provide to the Issuer may in either:
(A) written certification that it is not a U.S. Person and that such Warrant is not being exercised within the future be required by law United States or on behalf of, or for the account or benefit of; a U.S. Person; or
(B) a written opinion of counsel or other evidence satisfactory to disclose the Subscriber's name and other information relating Issuer to this Subscription Agreement the effect that the Warrants and the Subscriber's subscription hereunder, on a confidential basis, pursuant to such legislation. To the best of its knowledge, (a) none of the subscription funds to be provided by the Subscriber (i) Warrant Shares have been or will be derived from or related to any activity that is deemed criminal registered under the law of Canada, the United States, U.S. Securities Act and applicable state securities laws or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriber; and (b) the Subscriber shall promptly notify the Issuer if the Subscriber discovers that any of such representations ceases to be true, and to provide the Issuer with appropriate information in connection therewith. Notwithstanding that the Subscriber may be purchasing the Common Shares as agent on behalf of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Issuer in order to comply with the foregoingexempt from registration thereunder;
(li) the Subscriber will comply with Applicable Securities Laws and, if applicable, Rule 904 of Regulation S concerning the resale of the Common Shares Securities and all related restrictions (and the Issuer is not in any way responsible for such compliance) and will speak and consult with its own legal advisors with respect to such compliance;
(mj) Own Expense
(k) the Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any special counsel or other advisors retained by the Subscriber) relating to the purchase of the Common Shares Units will be borne by the Subscriber;
(nl) The representations, warranties and covenants of foregoing acknowledgements are made by the Subscriber herein are made with the intent that they be relied upon by the Issuer and its counsel in determining the its suitability as a purchaser of the purchaser of Common Shares Units, and the Subscriber hereby agrees to indemnify, defend and hold indemnify the Issuer and its counsel harmless against all losses, claims, costs, expenses and damages or liabilities which any of them the Issuer may suffer or incur caused or arising from as a result of reliance thereon. The Subscriber undertakes to immediately notify the Issuer and its counsel of any change in any statement or other information relating to the Subscriber set forth herein prior to the Closing Date.
Appears in 1 contract
Samples: Subscription Agreement (American Graphite Technologies Inc.)
Other General Representations Applicable to All Subscribers. The Subscriber represents and warrants and acknowledges and agrees with (on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom the Subscriber is contracting hereunder) to the Issuer that, as of the date of this Subscription Agreement and its counsel (and acknowledges that the Issuer and its counsel are relying thereon) thatat Closing hereunder:
(a) the Subscriber has no knowledge of a “material fact” or “material change”, as those terms are defined herein, in respect of the affairs of the Issuer that has not been generally disclosed to the public;
(b) the Subscriber (and, if applicable, any beneficial purchaser for whom it is acting) is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the execution page of this Subscription Agreement;
(c) the Subscriber is of legal age and has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution of this Subscription Agreement on behalf of the Subscriber;
(d) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(e) the Subscriber has duly and validly authorized, executed and delivered this Subscription Agreement and understands it is intended to constitute a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(f) in connection with the Subscriber’s investment in the Common SharesUnits, the Subscriber has not relied upon the Issuer for investment, legal or tax advice, and has, in all cases sought the advice of the Subscriber’s own personal investment advisor, legal counsel and tax advisers or has waived its rights thereto and the Subscriber is either experienced in or knowledgeable with regard to the affairs of the Issuer, or either alone or with its professional advisors is capable, by reason of knowledge and experience in financial and business matters in general, and investments in particular, of evaluating the merits and risks of an investment in the Common Shares Units and is able to bear the economic risk of the investment and it can otherwise be reasonably assumed to have the capacity to protect its own interest in connection with the investment in the Common SharesUnits;
(g) in the case of the purchase by the Subscriber of the Common Shares as agent or trustee for a principal, the Subscriber is the duly authorized trustee or agent of such beneficial Subscriber with due and proper power and authority to execute and deliver, on behalf of such beneficial Subscriber, this Subscription Agreement and all other documentation in connection with the purchase of the Common Shares hereunder, to agree to the terms and conditions herein and therein set out and to make the representations, warranties, acknowledgements and covenants herein and therein contained, all as if such beneficial Subscriber were the Subscriber and is subscribing as principal for its own account and not for the benefit of any other person for investment only and not for resale and the Subscriber's actions as trustee or agent are in compliance with applicable law and the Subscriber and the beneficial Subscriber each acknowledge that the Issuer may be required by law to disclose to certain regulatory authorities the identity of the beneficial Subscriber of Common Shares;
(h) the Subscriber is not a control person as defined under Applicable Securities Laws and will not become a control person by virtue of this subscription;
(i) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase the Common SharesShares or Warrants;
(ii) that any person will refund the purchase price for the Common Shares; orUnits;
(iii) as to the future price or value of the Common Shares.Shares or Warrants; or
(jiv) that the Shares or Warrants will be listed and posted for trading on a stock exchange or that application has been made to list and post the Shares or Warrants for trading on a stock exchange, other than the Exchange; Not a person in the United States or a U.S. Person
(h) The Subscriber represents and warrants that:
(i) the Common Shares Units are not being acquired, directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States and the Subscriber does not have any agreement or understanding (either written or oral) with any U.S. Person or a person in the United States respecting:
(A) the transfer or assignment of any rights or interests in any of the Common SharesShares or Warrants;
(B) the division of profits, losses, fees, commissions, or any financial stake in connection with this Subscription Agreement; or
(C) the voting of the Common Shares; and
(ii) the Subscriber has no intention to distribute either directly or indirectly any of the Common Shares or Warrants in the United States or to U.S. Persons;
(iii) the Subscriber represents that the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the U.S. Securities Act;
(iv) the Subscriber is a not a “U.S. Person” and is not purchasing the Common Shares Units for the account or benefit of any U.S. Person or a person in the United States or for offering, resale or delivery for the account or benefit of any U.S. Person or a person in the United States;
(v) the Subscriber was outside the United States at the time of execution and delivery of this Subscription Agreement within the meaning of Regulation S;
(vi) no offers to sell the Common Shares Units were made by any person to the Subscriber while the Subscriber was in the United States;
(vii) the Subscriber acknowledges that the Common Shares or Warrants have not been registered under the U.S. Securities Act, and may not be offered or sold in the United States or to a U.S. Person unless an exemption from such registration requirements is available. The Subscriber understands that the Issuer has no obligation or present intention of filing a registration statement under the U.S. Securities Act in respect of the Common SharesSecurities;
(viii) the Subscriber will not engage in any directed selling efforts (as defined by Regulation S under the U.S. Securities Act) in the United States in respect of the Common SharesUnits, which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of conditioning the market in the United States for the resale of the Common Shares;Shares or Warrants; and Compliance with Resale Laws
(k) the funds representing the aggregate subscription price for the Common Shares which will be advanced by the Subscriber hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the Subscriber acknowledges that the Issuer may in the future be required by law to disclose the Subscriber's name and other information relating to this Subscription Agreement and the Subscriber's subscription hereunder, on a confidential basis, pursuant to such legislation. To the best of its knowledge, (a) none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to any activity that is deemed criminal under the law of Canada, the United States, or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriber; and (b) the Subscriber shall promptly notify the Issuer if the Subscriber discovers that any of such representations ceases to be true, and to provide the Issuer with appropriate information in connection therewith. Notwithstanding that the Subscriber may be purchasing the Common Shares as agent on behalf of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Issuer in order to comply with the foregoing;
(l) the Subscriber will comply with Applicable Securities Laws and, if applicable, Rule 904 of Regulation S concerning the resale of the Common Shares or Warrants and all related restrictions (and the Issuer is not in any way responsible for such compliance) and will speak and consult with its own legal advisors with respect to such compliance;; Own Expense
(mj) the Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any special counsel or other advisors retained by the Subscriber) relating to the purchase of the Common Shares Units will be borne by the Subscriber;
(n) The representations, warranties and covenants of the Subscriber herein are made with the intent that they be relied upon by the Issuer and its counsel in determining the suitability of the purchaser of Common Shares and the Subscriber agrees to indemnify, defend and hold the Issuer and its counsel harmless against all losses, claims, costs, expenses and damages or liabilities which any of them may suffer or incur caused or arising from reliance thereon. The Subscriber undertakes to immediately notify the Issuer and its counsel of any change in any statement or other information relating to the Subscriber set forth herein prior to the Closing Date.
Appears in 1 contract
Samples: Subscription Agreement (Grown Rogue International Inc.)
Other General Representations Applicable to All Subscribers. The Subscriber represents and warrants and acknowledges and agrees with (on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom the Subscriber is contracting hereunder) to the Issuer that, as of the date of this Subscription Agreement and its counsel (and acknowledges that the Issuer and its counsel are relying thereon) thatat Closing hereunder:
(a) the Subscriber has no knowledge of a “material fact” or “material change”, as those terms are defined herein, in respect of the affairs of the Issuer that has not been generally disclosed to the public;
(b) the Subscriber (and, if applicable, any beneficial purchaser for whom it is acting) is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the execution page of this Subscription Agreement;
(c) the Subscriber is of legal age and has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution of this Subscription Agreement on behalf of the Subscriber;
(d) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(e) the Subscriber has duly and validly authorized, executed and delivered this Subscription Agreement and understands it is intended to constitute a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(f) in connection with the Subscriber’s investment in the Common SharesUnits, the Subscriber has not relied upon the Issuer for investment, legal or tax advice, and has, in all cases sought the advice of the Subscriber’s own personal investment advisor, legal counsel and tax advisers or has waived its rights thereto and the Subscriber is either experienced in or knowledgeable with regard to the affairs of the Issuer, or either alone or with its professional advisors is capable, by reason of knowledge and experience in financial and business matters in general, and investments in particular, of evaluating the merits and risks of an investment in the Common Shares Units and is able to bear the economic risk of the investment and it can otherwise be reasonably assumed to have the capacity to protect its own interest in connection with the investment in the Common SharesUnits;
(g) in the case of the purchase by the Subscriber of the Common Shares as agent or trustee for a principal, the Subscriber is the duly authorized trustee or agent of such beneficial Subscriber with due and proper power and authority to execute and deliver, on behalf of such beneficial Subscriber, this Subscription Agreement and all other documentation in connection with the purchase of the Common Shares hereunder, to agree to the terms and conditions herein and therein set out and to make the representations, warranties, acknowledgements and covenants herein and therein contained, all as if such beneficial Subscriber were the Subscriber and is subscribing as principal for its own account and not for the benefit of any other person for investment only and not for resale and the Subscriber's actions as trustee or agent are in compliance with applicable law and the Subscriber and the beneficial Subscriber each acknowledge that the Issuer may be required by law to disclose to certain regulatory authorities the identity of the beneficial Subscriber of Common Shares;
(h) the Subscriber is not a control person as defined under Applicable Securities Laws and will not become a control person by virtue of this subscription;
(i) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase the Common Shares;
(ii) that any person will refund the purchase price for the Common Shares; or
(iii) as to the future price or value of the Common Shares.
(j) The Subscriber represents and warrants that:
(i) the Common Shares are not being acquired, directly or indirectly, for the account or benefit of a Person or a person in the United States and the Subscriber does not have any agreement or understanding (either written or oral) with any U.S. Person or a person in the United States respecting:
(A) the transfer or assignment of any rights or interests in any of the Common Shares;
(B) the division of profits, losses, fees, commissions, or any financial stake in connection with this Subscription Agreement; or
(C) the voting of the Common Shares; and
(ii) the Subscriber has no intention to distribute either directly or indirectly any of the Common Shares in the United States or to U.S. Persons;
(iii) the Subscriber represents that the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the U.S. Securities Act;
(iv) the Subscriber is a not a “U.S. Person” and is not purchasing the Common Shares for the account or benefit of any U.S. Person or a person in the United States or for offering, resale or delivery for the account or benefit of any U.S. Person or a person in the United States;
(v) the Subscriber was outside the United States at the time of execution and delivery of this Subscription Agreement within the meaning of Regulation S;
(vi) no offers to sell the Common Shares were made by any person to the Subscriber while the Subscriber was in the United States;
(vii) the Subscriber acknowledges that the Common Shares have not been registered under the U.S. Securities Act, and may not be offered or sold in the United States or to a U.S. Person unless an exemption from such registration requirements is available. The Subscriber understands that the Issuer has no obligation or present intention of filing a registration statement under the U.S. Securities Act in respect of the Common Shares;
(viii) the Subscriber will not engage in any directed selling efforts (as defined by Regulation S under the U.S. Securities Act) in the United States in respect of the Common Shares, which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of conditioning the market in the United States for the resale of the Common Shares;
(k) the funds representing the aggregate subscription price for the Common Shares which will be advanced by the Subscriber hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the Subscriber acknowledges that the Issuer may in the future be required by law to disclose the Subscriber's name and other information relating to this Subscription Agreement and the Subscriber's subscription hereunder, on a confidential basis, pursuant to such legislation. To the best of its knowledge, (a) none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to any activity that is deemed criminal under the law of Canada, the United States, or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriber; and (b) the Subscriber shall promptly notify the Issuer if the Subscriber discovers that any of such representations ceases to be true, and to provide the Issuer with appropriate information in connection therewith. Notwithstanding that the Subscriber may be purchasing the Common Shares as agent on behalf of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Issuer in order to comply with the foregoing;
(l) the Subscriber will comply with Applicable Securities Laws and, if applicable, Regulation S concerning the resale of the Common Shares and all related restrictions (and the Issuer is not in any way responsible for such compliance) and will speak and consult with its own legal advisors with respect to such compliance;
(m) the Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any special counsel or other advisors retained by the Subscriber) relating to the purchase of the Common Shares will be borne by the Subscriber;
(n) The representations, warranties and covenants of the Subscriber herein are made with the intent that they be relied upon by the Issuer and its counsel in determining the suitability of the purchaser of Common Shares and the Subscriber agrees to indemnify, defend and hold the Issuer and its counsel harmless against all losses, claims, costs, expenses and damages or liabilities which any of them may suffer or incur caused or arising from reliance thereon. The Subscriber undertakes to immediately notify the Issuer and its counsel of any change in any statement or other information relating to the Subscriber set forth herein prior to the Closing Date.
Appears in 1 contract
Samples: Subscription Agreement
Other General Representations Applicable to All Subscribers. The Subscriber represents and warrants and acknowledges and agrees with (on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom the Subscriber is contracting hereunder) the Issuer and its counsel (and acknowledges that the Issuer and its counsel are relying thereon) that:
(a) the Subscriber has no knowledge of a “material fact” or “material change”, as those terms are defined herein, in respect of the affairs of the Issuer that has not been generally disclosed to the public;
(b) the Subscriber (and, if applicable, any beneficial purchaser for whom it is acting) is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the execution page of this Subscription Agreement;
(cb) the Subscriber is of legal age and has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution of this Subscription Agreement on behalf of the Subscriber;
(dc) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(ed) the Subscriber has duly and validly authorized, executed and delivered this Subscription Agreement and understands it is intended to constitute a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(fe) in connection with the Subscriber’s investment in the Common SharesWarrants, the Subscriber has not relied upon the Issuer for investment, legal or tax advice, and has, in all cases sought the advice of the Subscriber’s own personal investment advisor, legal counsel and tax advisers or has waived its rights thereto and the Subscriber is either experienced in or knowledgeable with regard to the affairs of the Issuer, or either alone or with its professional advisors is capable, by reason of knowledge and experience in financial and business matters in general, and investments in particular, of evaluating the merits and risks of an investment in the Common Shares Warrants and is able to bear the economic risk of the investment and it can otherwise be reasonably assumed to have the capacity to protect its own interest in connection with the investment in the Common SharesWarrants;
(g) in the case of the purchase by the Subscriber of the Common Shares as agent or trustee for a principal, the Subscriber is the duly authorized trustee or agent of such beneficial Subscriber with due and proper power and authority to execute and deliver, on behalf of such beneficial Subscriber, this Subscription Agreement and all other documentation in connection with the purchase of the Common Shares hereunder, to agree to the terms and conditions herein and therein set out and to make the representations, warranties, acknowledgements and covenants herein and therein contained, all as if such beneficial Subscriber were the Subscriber and is subscribing as principal for its own account and not for the benefit of any other person for investment only and not for resale and the Subscriber's actions as trustee or agent are in compliance with applicable law and the Subscriber and the beneficial Subscriber each acknowledge that the Issuer may be required by law to disclose to certain regulatory authorities the identity of the beneficial Subscriber of Common Shares;
(h) the Subscriber is not a control person as defined under Applicable Securities Laws and will not become a control person by virtue of this subscription;
(if) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase the Common SharesWarrants;
(ii) that any person will refund the purchase price for the Common Shares; orWarrants;
(iii) as to the future price or value of the Common Shares.Warrants; or
(jiv) The that the Warrants will be listed and posted for trading on a stock exchange or that application has been made to list and post the Warrants for trading on a stock exchange;
(g) Unless the Subscriber completes the U.S. Purchaser Certificate included herein as Schedule D (in which case the Subscriber represents, warrants and covenants to the Issuer as to the accuracy of all matters set out therein) in connection with a purchase of the Securities made in reliance on Regulation D, the Subscriber represents and warrants that:
(i) the Common Shares Securities are not being acquired, directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States and the Subscriber does not have any agreement or understanding (either written or oral) with any U.S. Person or a person in the United States respecting:
(A) the transfer or assignment of any rights or interests in any of the Common SharesSecurities;
(B) the division of profits, losses, fees, commissions, or any financial stake in connection with this Subscription Agreement; or
(C) the voting of the Common SharesSecurities; and
(ii) the Subscriber has no intention to distribute either directly or indirectly any of the Common Shares Securities in the United States or to U.S. Persons;
(iii) the Subscriber represents that the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the U.S. Securities Act;
(iv) the Subscriber is a not a “U.S. Person” and is not purchasing the Common Shares Securities for the account or benefit of any U.S. Person or a person in the United States States, or for offering, resale or delivery for the account or benefit of any U.S. Person or a person in the United States;
(v) the Subscriber was outside the United States at the time of execution and delivery of this Subscription Agreement within the meaning of Regulation S;
(vi) no offers to sell the Common Shares Securities were made by any person to the Subscriber while the Subscriber was in the United States;
(vii) the Subscriber acknowledges that the Common Shares Securities have not been and will not be registered under the U.S. Securities ActAct or the securities laws of any state of the United States, and that the Securities may not be offered or sold in the United States States, or to or for the account or benefit of a U.S. Person or a person in the United States, unless an exemption from such registration requirements is available. The Subscriber understands that the Issuer has no obligation or present intention of filing a registration statement under the U.S. Securities Act in respect of the Common SharesSecurities;
(viii) the Subscriber will not engage in any directed selling efforts (as defined by Regulation S under the U.S. Securities Act) in the United States in respect of the Common SharesSecurities, which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of conditioning the market in the United States for the resale of the Common Shares;Securities; and
(kix) the funds representing the aggregate subscription price for the Common Shares which will be advanced by the Subscriber hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the Subscriber acknowledges that any person who exercises a Warrant will be required to provide to the Issuer may either:
(A) written certification that it is not a U.S. Person and that such Warrant is not being exercised within the United States or on behalf of, or for the account or benefit of; a U.S. Person or a person in the future be required by law to disclose the Subscriber's name and other information relating to this Subscription Agreement and the Subscriber's subscription hereunder, on a confidential basis, pursuant to such legislation. To the best of its knowledge, (a) none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to any activity that is deemed criminal under the law of Canada, the United States, ; or
(B) a written opinion of counsel or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified evidence satisfactory to the Subscriber; and (b) Issuer to the Subscriber shall promptly notify the Issuer if the Subscriber discovers that any of such representations ceases to be true, and to provide the Issuer with appropriate information in connection therewith. Notwithstanding effect that the Subscriber may be purchasing Warrant Shares have been registered under the Common Shares as agent on behalf of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Issuer in order to comply with the foregoingU.S. Securities Act and applicable state securities laws or are exempt from registration thereunder;
(lh) the Subscriber will comply with Applicable Securities Laws and, if applicable, Rule 904 of Regulation S concerning the resale of the Common Shares Securities and all related restrictions (and the Issuer is not in any way responsible for such compliance) and will speak and consult with its own legal advisors with respect to such compliance;
(mi) the Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any special counsel or other advisors retained by the Subscriber) relating to the purchase of the Common Shares Warrants will be borne by the Subscriber;
(nj) The representations, warranties and covenants of foregoing acknowledgements are made by the Subscriber herein are made with the intent that they be relied upon by the Issuer and its counsel in determining the its suitability as a purchaser of the purchaser of Common Shares Warrants, and the Subscriber hereby agrees to indemnify, defend and hold indemnify the Issuer and its counsel harmless against all losses, claims, costs, expenses and damages or liabilities which any of them the Issuer may suffer or incur caused or arising from as a result of reliance thereon. The Subscriber undertakes to immediately notify the Issuer and its counsel of any change in any statement or other information relating to the Subscriber set forth herein prior to the Closing Date.
Appears in 1 contract
Samples: Warrant Subscription Agreement (Modern Mining Technology Corp.)
