Representations and Covenants of the Subscriber. The Subscriber hereby represents and warrants to the Company as follows: (a) The Subscriber recognizes that the purchase of Units involves a high degree of risk in that (i) the Company will need additional capital to operate its business but has no assurance of additional necessary capital; (ii) an investment in the Company is highly speculative and only investors who can afford the loss of their entire investment should consider investing in the Company and the Units; (iii) an investor may not be able to liquidate his or her investment; (iv) transferability of the Securities is extremely limited; (v) an investor could sustain the loss of his or her entire investment; and (vi) the Company is and will be subject to numerous other risks and uncertainties, including without limitation, significant and material risks relating to the Company’s business, and the industries, markets and geographic regions in which the Company will compete, as well as risks associated with the Offering contained in the Private Placement Memorandum. (b) The Subscriber acknowledges that he or she has prior investment experience, including without limitation, investments in non-listed and non-registered securities, or he or she has employed the services of an investment advisor, attorney and/or accountant to read all of the documents furnished or made available by the Company to him or her and to all other prospective investors in the Units and to evaluate the merits and risks of such an investment on his or her behalf, and that he or she recognizes the highly speculative nature of this investment. (c) The Subscriber acknowledges that (i) there are significant restrictions on the transferability of the Securities, and no assurance can be given when, if ever, such registration of the Shares or the Common Stock issuable upon exercise of the Class A Warrants, Class B Warrants and the Class C Warrants will be filed or declared effective by the U.S. Securities and Exchange Commission (the “SEC”), and accordingly, it may not be possible for the Subscriber to liquidate the Subscriber’s investment in the Company as currently no public market exists; (ii) no federal or state agency has made any findings as to the fairness of the terms of the Offering; (iii) any projections or predictions that may have been made available to the Subscriber are based on estimates, assumptions and forecasts which may prove to be incorrect; (iv) and no assurance is given that actual results will correspond with the results contemplated by the various projections. (d) The Subscriber acknowledges receipt and careful review of the Private Placement Memorandum, this Agreement, and the attachments hereto and thereto (collectively, the “Offering Documents”), and hereby represents that (i) he or she has been furnished or given access by the Company during the course of this Offering with or to all information regarding the Company and its financial condition and results of operations which he or she had requested or desired to know; (ii) that all documents which could be reasonably provided have been made available for his or her inspection and review; (iii) that he or she has been afforded the opportunity to ask questions of and receive answers from duly authorized representatives of the concerning the terms and conditions of the Offering; and (iv) any additional information which he or she had requested. (e) The Subscriber acknowledges that this Offering of Units may involve tax consequences, and that the contents of the Offering Documents do not contain tax advice or information. The Subscriber acknowledges that he or she must retain his or her own professional advisors to evaluate the tax and other consequences of an investment in the Units. (f) The Subscriber represents that the Units are being purchased for his or her own account, for investment and not for distribution or resale to others. The Subscriber agrees that he or she will not sell or otherwise transfer any of the securities comprising the Units unless they are registered under the Act or unless an exemption from such registration is available and, upon the Company’s request, the Company receives an opinion of counsel reasonably satisfactory to the Company confirming that an exemption from such registration is available for such sale or transfer. (g) The Subscriber understands that the Company will review this Agreement and the results from a third party verification service and the Company reserves the unrestricted right to reject or limit any subscription and to close the Offering at any time. (h) The Subscriber hereby represents that the address of the Subscriber furnished by him or her at the end of this Agreement is the Subscriber’s principal residence if he or she is an individual or its principal business address if it is a corporation or other entity. (i) The Subscriber hereby represents that, except as set forth in the Offering Documents, no representations or warranties have been made to the Subscriber by the Company or its agents, employees or affiliates and in entering into this transaction, the Subscriber is not relying on any information, other than that contained in the Offering Documents and the results of independent investigation by the Subscriber. (j) The Subscriber, in making the decision to purchase the Units subscribed for, has relied upon independent investigations made by it and its purchaser representatives, if any, and the Subscriber and such representatives, if any, have prior to any sale to it been given access and the opportunity to examine all material contracts and documents relating to this Offering and an opportunity to ask questions of, and to receive answers from, the Company or any person acting on its behalf concerning the terms and conditions of this Offering. The Subscriber and its advisors, if any, have been furnished with access to all materials relating to the business, finances and operation of the Company and materials relating to the offer and sale of the Units that have been requested. The Subscriber and its advisors, if any, have received complete and satisfactory answers to any such inquiries. (k) The Subscriber agrees that he or she will purchase Units in the Offering only if his or her intent at such time is to make such purchase for investment purposes and not with a view toward resale. (l) If the Subscriber is a partnership, corporation, trust or other entity, such partnership, corporation, trust or other entity further represents and warrants that: (i) it was not formed for the purpose of investing in the Company; (ii) it is authorized and otherwise duly qualified to purchase and hold the Units; and (iii) that this Agreement has been duly and validly authorized, executed and delivered and constitutes the legal, binding and enforceable obligation of the Subscriber. (m) If the Subscriber is not a United States person, such Subscriber hereby represents that it has satisfied itself as to the full observance of the laws of his or her jurisdiction in connection with any invitation to subscribe for the Units or any use of this Agreement, including (i) the legal requirements within her or her jurisdiction for the purchase of the Units; (ii) any foreign exchange restrictions applicable to such purchase; (iii) any governmental or other consents that may need to be obtained; and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale or transfer of the Units. Such Subscriber’s subscription and payment for, and his or her continued beneficial ownership of the Units, will not violate any applicable securities laws or other laws of the Subscriber’s jurisdiction. (n) The Subscriber understands and acknowledges that (i) the Units are being offered and sold to Subscriber without registration under the Act in a private placement that is exempt from the registration provisions of the Act under Section 4(a)(2) of the Act and (ii) the availability of such exemption depends in part on, and that the Company will rely upon the accuracy and truthfulness of, the foregoing representations, and such Subscriber hereby consents to such reliance. (o) That the Subscriber certifies, under penalty of perjury, (i) that the social security or Tax Identification Number set forth herein is true, correct and complete, and (ii) that the Subscriber is not subject to backup withholding either because the Subscriber has not been notified that the Subscriber is subject to backup withholding as a result of a failure to report all interest or dividends, or the Internal Revenue Service has notified the Subscriber that the Subscriber is no longer subject to backup withholding. (p) The amounts invested by the Subscriber it in the Company in the Offering were not and are not directly or indirectly derived from activities that contravene federal, state or international laws and regulations, including anti-money laundering laws and regulations. Federal regulations and Executive Orders administered by the Office of Foreign Assets Control (“OFAC”) prohibit, among other things, the engagement in transactions with, and the provision of services to, certain foreign countries, territories, entities and individuals. The lists of OFAC prohibited countries, territories, persons and entities can be found on the OFAC website at xxxx://xxx.xxxxx.xxx/ofac. In addition, the programs administered by OFAC (the “OFAC Programs”) prohibit dealing with individuals1 or entities in certain countries regardless of whether such individuals or entities appear on the OFAC lists;
Appears in 2 contracts
Samples: Subscription Agreement, Subscription Agreement (Originclear, Inc.)
Representations and Covenants of the Subscriber. The Subscriber hereby represents and warrants to the Company as follows:
(a) The general information regarding the Subscriber previously submitted, submitted herewith, or to be submitted in the future to the Company by the Subscriber, including, but not limited to the information provided in the signature page hereof and the documents and information submitted to www.VerifyInvestor, is and shall be true, complete, and correct.
(b) The Subscriber has reviewed the definition of “accredited investor” as such term is defined in Rule 501 of Regulation D, and the Subscriber meets one or more of the requirements to qualify as an “accredited investor.”
(c) The Subscriber recognizes that the purchase of Units involves a high degree of risk in that (i) the Company will need additional capital to operate its business but has no assurance of additional necessary capital; (ii) an investment in the Company is highly speculative and only investors who can afford the loss of their entire investment should consider investing in the Company and the Units; (iii) an investor may not be able to liquidate his or her investment; (iv) the Coin Purchase Rights are not transferable, and the transferability of the Securities Shares is extremely limited; (v) an investor could sustain the loss of his or her entire investment; and (vi) the Company is and will be subject to numerous other risks and uncertainties, including without limitation, significant and material risks relating to the Company’s business, and the industries, markets and geographic regions in which the Company will compete, as well as risks associated with the Offering contained in the Company’s confidential private placement memorandum for the Offering, dated April 11, 2018 (the “Private Placement Memorandum”).
(bd) The Subscriber is able to bear the economic risks associated with an investment in the Company. The Subscriber has adequate means of providing for current needs and personal contingencies and is aware that an investment in the Units is highly speculative and subject to substantial risks. The Subscriber is capable of bearing the high degree of economic risk and burden of this investment, including, but not limited to, the possibility of the complete loss of all contributed capital and the limited transferability of the Interests.
(e) The Subscriber acknowledges that he or she has prior investment experience, including without limitation, investments in non-listed and non-registered securities, or he or she has employed the services of an investment advisor, attorney and/or accountant to read all of the documents furnished or made available by the Company to him or her and to all other prospective investors in the Units and to evaluate the merits and risks of such an investment on his or her behalf, and that he or she recognizes the highly speculative nature of this investment.
(cf) The Subscriber acknowledges that (i) the Coin Purchase Rights are not transferable and there are significant restrictions on the transferability of the SecuritiesShares, that the Company has no intention to register or develop a market for the Units, Shares or Coin Purchase Rights, and no assurance can be given when, if ever, such registration of the Shares or the Common Stock issuable upon exercise of the Class A Warrants, Class B Warrants and the Class C Warrants will be filed or declared effective by the U.S. Securities and Exchange Commission (the “SEC”), and accordingly, accordingly it may not be possible for the Subscriber to liquidate the Subscriber’s investment in and the Company Units should be considered only as currently no public market existsa long-term investment; (ii) the terms and conditions of the Coins, and the availability of a trading medium for them, have not been determined, and accordingly the Coins, if and when issued, may not have significant value and may not be liquid; (iii) the Shares and the Company’s Common Stock issuable on conversion of the Shares will be “restricted securities” within the meaning of Rule 144 under the Securities Act under the Securities Act (“Rule 144”), and may be resold only pursuant to the conditions of Rule 144 under the Securities Act, including the expiration of all applicable holding periods, or pursuant to an available exemption from registration, (iv) no federal or state agency has made any findings as to the fairness of the terms of the Offering; (iiiv) any projections or predictions that may have been made available to the Subscriber are based on estimates, assumptions and forecasts which may prove to be incorrect; and (ivvi) and no assurance is given that actual results will correspond with the results contemplated by the various projections.
(dg) The Subscriber acknowledges receipt and careful review of the Private Placement Memorandum, this Agreement, and the attachments hereto and thereto (collectively, the “Offering Documents”), and hereby represents that (i) he or she has relied upon independent investigation in making the decision to purchase the Units subscribed for, (ii) he or she has been furnished or given access by the Company during the course of this Offering with or to all information regarding the Company and its financial condition and results of operations which he or she had requested or desired to know; (ii) that all documents documents, including material contracts, which could be reasonably provided have been made available for his or her inspection and review; (iiiiv) that he or she has been afforded the opportunity to ask questions of and receive answers from duly authorized representatives of the concerning the terms and conditions of the OfferingOffering and to obtain such additional information as the Subscriber deemed desirable to verify the accuracy of such information and to evaluate the merits and risks of the purchase of the Units; and (ivv) any additional information which he or she had requested.
(eh) The Subscriber acknowledges that this the Offering of Units may involve tax consequences, and that the contents of the Offering Documents do not contain tax advice or information. The Subscriber acknowledges that he or she must retain his or her own professional advisors to evaluate the tax and other consequences of an investment in the Units.
(fi) The Subscriber represents that the Units are being purchased for his or her own account, for investment and not for distribution or resale to others. The Subscriber agrees that he or she will not sell or otherwise transfer any of the securities comprising the Units unless they are registered under the Securities Act or unless an exemption from such registration is available and, upon the Company’s request, the Company receives an opinion of counsel reasonably satisfactory to the Company confirming that an exemption from such registration is available for such sale or transfer.
(gj) The Subscriber understands that the Company will review this Agreement and the results from a third party accredited investor verification service and the Company reserves the unrestricted right to reject or limit any subscription and to close the Offering at any time.
(h) The Subscriber hereby represents that the address of the Subscriber furnished by him or her at the end of this Agreement is the Subscriber’s principal residence if he or she is an individual or its principal business address if it is a corporation or other entity.
(ik) The Subscriber hereby represents that, except as set forth in the Offering Documents, no representations or warranties have been made to the Subscriber by the Company or its agents, employees or affiliates and in entering into this transaction, the Subscriber is not relying on any information, other than that contained in the Offering Documents and the results of independent investigation by the Subscriber.
(j) The Subscriber, in making the decision to purchase the Units subscribed for, has relied upon independent investigations made by it and its purchaser representatives, if any, and the Subscriber and such representatives, if any, have prior to any sale to it been given access and the opportunity to examine all material contracts and documents relating to this Offering and an opportunity to ask questions of, and to receive answers from, the Company or any person acting on its behalf concerning the terms and conditions of this Offering. The Subscriber and its advisors, if any, have been furnished with access to all materials relating to the business, finances and operation of the Company and materials relating to the offer and sale of the Units that have been requested. The Subscriber and its advisors, if any, have received complete and satisfactory answers to any such inquiries.
(k) The Subscriber agrees that he or she will purchase Units in the Offering only if his or her intent at such time is to make such purchase for investment purposes and not with a view toward resale.
(l) If the Subscriber is a partnership, corporation, trust or other entity, such partnership, corporation, trust or other entity further represents and warrants that: (i) it was not formed for the purpose of investing in the Company; (ii) it is authorized and otherwise duly qualified to purchase and hold the Units; and (iii) that this Agreement has been duly and validly authorized, executed and delivered and constitutes the legal, binding and enforceable obligation of the Subscriber.
(m) If the Subscriber is not a United States person, such Subscriber hereby represents that it has satisfied itself as to the full observance of the laws of his or her jurisdiction in connection with any invitation to subscribe for the Units or any use of this Agreement, including (i) the legal requirements within her or her jurisdiction for the purchase of the Units; (ii) any foreign exchange restrictions applicable to such purchase; (iii) any governmental or other consents that may need to be obtained; and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale or transfer of the Units. Such Subscriber’s subscription and payment for, and his or her continued beneficial ownership of the Units, will not violate any applicable securities laws or other laws of the Subscriber’s jurisdiction.
(n) The Subscriber understands and acknowledges that (i) the Units are being offered and sold to Subscriber without registration under the Securities Act in a private placement that is exempt from the registration provisions of the Act under Section 4(a)(2) of the Act Securities Act, and Rule 506(c) of Regulation D, and (ii) the availability of such exemption depends in part on, and that the Company will rely upon the accuracy and truthfulness of, the foregoing representations, and such Subscriber hereby consents to such reliance.
(o) That the Subscriber certifies, under penalty of perjury, (i) that the social security or Tax Identification Number set forth herein is true, correct and complete, and (ii) that the Subscriber is not subject to backup withholding under section 3406(a)(1)(c) of the Internal Revenue Code, as amended (the “IRC”) either because the Subscriber has not been notified that the Subscriber is subject to such backup withholding as a result of a failure to report all interest or dividends, or the Internal Revenue Service has notified the Subscriber that the Subscriber is no longer subject to backup withholding.
(p) The amounts invested by the Subscriber it in acknowledges that the Company in will not accept the Offering were not and are not investment of funds by any investor acting, directly or indirectly derived from activities that contravene federalindirectly, state or international laws and regulations, including in contravention of any applicable anti-money laundering laws regulations or conventions of the United States or any applicable international jurisdictions, or on behalf of terrorists, terrorist organizations, or narcotics traffickers, including those persons or entities that are included on any relevant lists maintained by the United Nations, North Atlantic Treaty Organization, Financial Action Task Force on Money Laundering of Organization for Economic Cooperation and regulationsDevelopment, Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), the U.S. Securities and Exchange Commission (“SEC”), U.S. Federal Bureau of Investigation, U.S. Central Intelligence Agency, or U.S. Internal Revenue Service, all as such regulations and conventions may be amended from time to time (“Prohibited Investments”). The Subscriber’s subscription for the Interests is not a Prohibited Investment. Federal regulations and Executive Orders administered by the Office of Foreign Assets Control (“OFAC”) OFAC prohibit, among other things, the engagement in transactions with, and the provision of services to, certain foreign countries, territories, entities and individuals. The lists of OFAC prohibited countries, territories, persons and entities can be found on the OFAC website at xxxx://xxx.xxxxx.xxx/ofac. In addition, the programs administered by OFAC (the “OFAC Programs”) prohibit dealing with individuals1 or entities in certain countries regardless of whether such individuals or entities appear on the OFAC lists;.
(q) To the best of the Subscriber’s knowledge, none of: (1) the Subscriber; (2) any person controlling or controlled by the Subscriber; (3) if the Subscriber is a privately-held entity, any person having a beneficial interest in the Subscriber; or (4) any person for whom the Subscriber is acting as agent or nominee in connection with this investment is a country, territory, individual or entity named on an OFAC list, or a person or entity prohibited under the OFAC Programs. The Subscriber understands and acknowledges that the Company may not accept any amounts from a prospective investor if such prospective investor cannot make the representation set forth in the preceding paragraph. The Subscriber agrees to promptly notify the Company if the Subscriber becomes aware of any change in the information set forth in these representations. The Subscriber understands and acknowledges that, by law, the Company may be obligated to “freeze the account” of the Subscriber, either by prohibiting additional subscriptions from the Subscriber, declining any redemption requests and/or segregating the assets in the account in compliance with governmental regulations, and may also be required to report such action and to disclose the Subscriber’s identity to OFAC. The Subscriber further acknowledges that the Company may, by written notice to the Subscriber, suspend the redemption rights, if any, of the Subscriber if the Company reasonably deems it necessary to do so to comply with anti-money laundering regulations applicable to the Company, its Subsidiaries, or any of the Company’s other service providers. These individuals include specially designated nationals, specially designated narcotics traffickers and other parties subject to OFAC sanctions and embargo programs.
(r) To the best of the Subscriber’s knowledge, none of: (1) the Subscriber; (2) any person controlling or controlled by the Subscriber; (3) if the Subscriber is a privately-held entity, any person having a beneficial interest in the Subscriber; or (4) any person for whom the Subscriber is acting as agent or nominee in connection with this investment is a senior foreign political figure,2 or any immediate family3 member or close associate4 of a senior foreign political figure, as such terms are defined in the footnotes below. 1 These individuals include specially designated nationals, specially designated narcotics traffickers and other parties subject to OFAC sanctions and embargo programs.
2 A “senior foreign political figure” is defined as a senior official in the executive, legislative, administrative, military or judicial branches of a foreign government (whether elected or not), a senior official of a major foreign political party, or a senior executive of a foreign government-owned corporation. In addition, a “senior foreign political figure” includes any corporation, business or other entity that has been formed by, or for the benefit of, a senior foreign political figure. 3 “Immediate family” of a senior foreign political figure typically includes the figure’s parents, siblings, spouse, children and in-laws.
4 A “close associate” of a senior foreign political figure is a person who is widely and publicly known to maintain an unusually close relationship with the senior foreign political figure, and includes a person who is in a position to conduct substantial domestic and international financial transactions on behalf of the senior foreign political figure.
(s) If the Subscriber is affiliated with a non-U.S. banking institution (a “Foreign Bank”), or if the Subscriber receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, the Subscriber represents and warrants to the Company that: (1) the Foreign Bank has a fixed address, other than solely an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities; (2) the Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities; and (4) the Foreign Bank does not provide banking services to any other Foreign Bank that does not have a physical presence in any country and that is not a regulated affiliate.
(t) The Subscriber, whether in its own capacity or through a representative, agent or affiliate (i) represents and warrants to the Company that prior to the purchase of the Units it has not entered into or effected any “short sales” of any Shares or shares of Common Stock of the Company or any hedging transaction which establishes a net short position with respect to the Shares, and (ii) covenants to the Company that for a period of twelve months from the sale of the Units it will not enter into or effect, any “short sales” of any Shares or shares of Common Stock of the Company or any hedging transaction which establishes a net short position with respect to the Shares.
Appears in 1 contract
Representations and Covenants of the Subscriber. The Subscriber hereby represents and warrants to the Company as follows:
(a) The Subscriber recognizes that the purchase of Units the Securities involves a high degree of risk in that (i) the Company will need additional capital to operate its business but has no assurance of additional necessary capital; (ii) an investment in the Company is highly speculative and only investors who can afford the loss of their entire investment should consider investing in the Company and the UnitsSecurities; (iii) an investor may not be able to liquidate his or her investment; (iv) transferability of the Securities is extremely limited; (v) an investor could sustain the loss of his or her entire investment; and (vi) the Company is and will be subject to numerous other risks and uncertainties, including without limitation, significant and material risks relating to the Company’s business, and the industries, markets and geographic regions in which the Company will compete, as well as risks associated with the Offering contained in the Private Placement Memorandum.
(b) The Subscriber acknowledges that he or she has prior investment experience, including without limitation, investments in non-listed and non-registered securities, or he or she has employed the services of an investment advisor, attorney and/or accountant to read all of the documents furnished or made available by the Company to him or her and to all other prospective investors in the Units Securities and to evaluate the merits and risks of such an investment on his or her behalf, and that he or she recognizes the highly speculative nature of this investment.
(c) The Subscriber acknowledges that (i) there are significant restrictions on the transferability of the Securities, and no assurance can be given when, if ever, such registration of the Shares or the Common Stock issuable upon exercise of the Class A Warrants, Class B Warrants and the Class C Warrants Securities will be filed or declared effective by the U.S. Securities and Exchange Commission (the “SEC”), and accordingly, it may not be possible for the Subscriber to liquidate the Subscriber’s investment in the Company as currently no public market exists; (ii) no federal or state agency has made any findings as to the fairness of the terms of the Offering; (iii) any projections or predictions that may have been made available to the Subscriber are based on estimates, assumptions and forecasts which may prove to be incorrect; (iv) and no assurance is given that actual results will correspond with the results contemplated by the various projections.
(d) The Subscriber acknowledges receipt and careful review of the Private Placement Memorandum, including the Certificate of Designation of Rigs, Powers, Preferences Privileges and Restrictions of the 0% Series E Convertible Preferred Stock of OriginClear, Inc. and the Common Stock Purchase Warrant and this Agreement, and the attachments hereto and thereto (collectively, the “Offering Documents”), and hereby represents that (i) he or she has been furnished or given access by the Company during the course of this Offering with or to all information regarding the Company and its financial condition and results of operations which he or she had requested or desired to know; (ii) that all documents which could be reasonably provided have been made available for his or her inspection and review; (iii) that he or she has been afforded the opportunity to ask questions of and receive answers from duly authorized representatives of the concerning the terms and conditions of the Offering; and (iv) any additional information which he or she had requested.
(e) The Subscriber acknowledges that this Offering of Units may involve tax consequences, and that the contents of the Offering Documents do not contain tax advice or information. The Subscriber acknowledges that he or she must retain his or her own professional advisors to evaluate the tax and other consequences of an investment in the UnitsSecurities.
(f) The Subscriber represents that the Units Securities are being purchased for his or her own account, for investment and not for distribution or resale to others. The Subscriber agrees that he or she will not sell or otherwise transfer any of the securities comprising the Units Securities unless they are registered under the Act or unless an exemption from such registration is available and, upon the Company’s request, the Company receives an opinion of counsel reasonably satisfactory to the Company confirming that an exemption from such registration is available for such sale or transfer.
(g) The Subscriber understands that the Company will review this Agreement and the results from a third party verification service and the Company reserves the unrestricted right to reject or limit any subscription and to close the Offering at any time.
(h) The Subscriber hereby represents that the address of the Subscriber furnished by him or her at the end of this Agreement is the Subscriber’s principal residence if he or she is an individual or its principal business address if it is a corporation or other entity.
(i) The Subscriber hereby represents that, except as set forth in the Offering Documents, no representations or warranties have been made to the Subscriber by the Company or its agents, employees or affiliates and in entering into this transaction, the Subscriber is not relying on any information, other than that contained in the Offering Documents and the results of independent investigation by the Subscriber.
(j) The Subscriber, in making the decision to purchase the Units Securities subscribed for, has relied upon independent investigations made by it and its purchaser representatives, if any, and the Subscriber and such representatives, if any, have prior to any sale to it been given access and the opportunity to examine all material contracts and documents relating to this Offering and an opportunity to ask questions of, and to receive answers from, the Company or any person acting on its behalf concerning the terms and conditions of this Offering. The Subscriber and its advisors, if any, have been furnished with access to all materials relating to the business, finances and operation of the Company and materials relating to the offer and sale of the Units Securities that have been requested. The Subscriber and its advisors, if any, have received complete and satisfactory answers to any such inquiries.
(k) The Subscriber agrees that he or she will purchase Units Securities in the Offering only if his or her intent at such time is to make such purchase for investment purposes and not with a view toward resale.
(l) If the Subscriber is a partnership, corporation, trust or other entity, such partnership, corporation, trust or other entity further represents and warrants that: (i) it was not formed for the purpose of investing in the Company; (ii) it is authorized and otherwise duly qualified to purchase and hold the UnitsSecurities; and (iii) that this Agreement has been duly and validly authorized, executed and delivered and constitutes the legal, binding and enforceable obligation of the Subscriber.
(m) If the Subscriber is not a United States person, such Subscriber hereby represents that it has satisfied itself as to the full observance of the laws of his or her jurisdiction in connection with any invitation to subscribe for the Units Securities or any use of this Agreement, including (i) the legal requirements within her or her jurisdiction for the purchase of the UnitsSecurities; (ii) any foreign exchange restrictions applicable to such purchase; (iii) any governmental or other consents that may need to be obtained; and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale or transfer of the UnitsSecurities. Such Subscriber’s subscription and payment for, and his or her continued beneficial ownership of the UnitsSecurities, will not violate any applicable securities laws or other laws of the Subscriber’s jurisdiction.
(n) The Subscriber understands and acknowledges that (i) the Units Securities are being offered and sold to Subscriber without registration under the Act in a private placement that is exempt from the registration provisions of the Act under Section 4(a)(2) of the Act and (ii) the availability of such exemption depends in part on, and that the Company will rely upon the accuracy and truthfulness of, the foregoing representations, and such Subscriber hereby consents to such reliance.
(o) That the Subscriber certifies, under penalty of perjury, (i) that the social security or Tax Identification Number set forth herein is true, correct and complete, and (ii) that the Subscriber is not subject to backup withholding either because the Subscriber has not been notified that the Subscriber is subject to backup withholding as a result of a failure to report all interest or dividends, or the Internal Revenue Service has notified the Subscriber that the Subscriber is no longer subject to backup withholding.
(p) The amounts invested by the Subscriber it in the Company in the Offering were not and are not directly or indirectly derived from activities that contravene federal, state or international laws and regulations, including anti-money laundering laws and regulations. Federal regulations and Executive Orders administered by the Office of Foreign Assets Control (“OFAC”) prohibit, among other things, the engagement in transactions with, and the provision of services to, certain foreign countries, territories, entities and individuals. The lists of OFAC prohibited countries, territories, persons and entities can be found on the OFAC website at xxxx://xxx.xxxxx.xxx/ofac. In addition, the programs administered by OFAC (the “OFAC Programs”) prohibit dealing with individuals1 or entities in certain countries regardless of whether such individuals or entities appear on the OFAC lists;
Appears in 1 contract
Representations and Covenants of the Subscriber. The Subscriber hereby represents and warrants to the Company as follows:
(a) The Subscriber recognizes that the purchase of Units Securities involves a high degree of risk in that (i) the Company will need additional capital to operate its business but has no assurance of additional necessary capital; (ii) an investment in the Company is highly speculative and only investors who can afford the loss of their entire investment should consider investing in the Company and the UnitsSecurities; (iii) an investor may not be able to liquidate his or her investment; (iv) transferability of the Securities is extremely limited; (v) an investor could sustain the loss of his or her entire investment; and (vi) the Company is and will be subject to numerous other risks and uncertainties, including without limitation, significant and material risks relating to the Company’s business, and the industries, markets and geographic regions in which the Company will compete, as well as risks associated with the Offering contained in the Private Placement Offering Memorandum.
(b) The Subscriber acknowledges that he or she has prior investment experience, including without limitation, investments in non-listed and non-registered securities, or he or she has employed the services of an investment advisor, attorney and/or accountant to read all of the documents furnished or made available by the Company to him or her and to all other prospective investors in the Units Securities and to evaluate the merits and risks of such an investment on his or her behalf, and that he or she recognizes the highly speculative nature of this investment.
(c) The Subscriber acknowledges that (i) the Company is newly formed and yet to begin its operation and as such, may have losses for the foreseeable future; (ii) there are significant restrictions on the transferability of the SecuritiesShares, including but not limited to: (A) the Shares will not be, and the Subscriber will have no assurance can be given when, if ever, such registration of right to require that the Shares be registered under the Act or any state securities laws, and (B) there is no public market for the Common Stock issuable upon exercise of the Class A Warrants, Class B Warrants Shares and the Class C Warrants will be filed or declared effective by the U.S. Securities and Exchange Commission (the “SEC”)none is expected to develop, and accordingly, it may not be possible for the Subscriber to liquidate the Subscriber’s investment in the Company as currently no public market existsCompany; (iiiii) no federal or state agency has made any findings as to the fairness of the terms of the Offering; and (iiiiv) any projections or predictions that may have been made available to the Subscriber are based on estimates, assumptions and forecasts which may prove to be incorrect; (iv) and no assurance is given that actual results will correspond with the results contemplated by the various projections.
(d) The Subscriber acknowledges receipt and careful review of the Private Placement Offering Memorandum, this Agreement, and the attachments hereto and thereto (collectively, the “Offering Documents”), ) and hereby represents that (i) he or she has been furnished or given access by the Company during the course of this Offering with or to all information regarding the Company and its financial condition and results of operations which he or she had requested or desired to know; (ii) that all documents which could be reasonably provided have been made available for his or her inspection and review; (iii) that he or she has been afforded the opportunity to ask questions of and receive answers from duly authorized representatives of the concerning the terms and conditions of the Offering; , and (iv) any additional information which he or she had requested.
(e) The Subscriber acknowledges that this Offering of Units Shares may involve tax consequences, and that the contents of the Offering Documents do not contain tax advice or information. The Subscriber acknowledges that he or she must retain his or her own professional advisors to evaluate the tax and other consequences of an investment in the UnitsSecurities.
(f) The Subscriber represents that the Units Securities are being purchased for his or her own account, for investment and not for distribution or resale to others. The Subscriber agrees that he or she will not sell or otherwise transfer any of the securities comprising the Units Securities unless they are registered under the Act or unless an exemption from such registration is available and, upon the Company’s request, the Company receives an opinion of counsel reasonably satisfactory to the Company confirming that an exemption from such registration is available for such sale or transfer.
(g) The Subscriber understands that the Company will review this Agreement and the results from Investor Questionnaire and, if the Subscriber is a third party verification service natural person, the Company is hereby given authority by the undersigned to call his or her bank or place of employment. The Subscriber further authorizes the Company to review the financial standing of the Subscriber; and the Subscriber agrees that the Company reserves the unrestricted right to reject or limit any subscription and to close the Offering offer at any time.
(h) The Subscriber hereby represents that the address of the Subscriber furnished by him or her at the end of this Agreement and in the Investor Questionnaire is the Subscriber’s principal residence if he or she is an individual or its principal business address if it is a corporation or other entity.
(i) The Subscriber hereby represents that, except as set forth in the Offering Documents, no representations or warranties have been made to the Subscriber by the Company or its agents, employees or affiliates and in entering into this transaction, the Subscriber is not relying on any information, other than that contained in the Offering Documents and the results of independent investigation by the Subscriber.
(j) The Subscriber, in making the decision to purchase the Units subscribed for, has relied upon independent investigations made by it and its purchaser representatives, if any, and the Subscriber and such representatives, if any, have prior to any sale to it been given access and the opportunity to examine all material contracts and documents relating to this Offering and an opportunity to ask questions of, and to receive answers from, the Company or any person acting on its behalf concerning the terms and conditions of this Offering. The Subscriber and its advisors, if any, have been furnished with access to all materials relating to the business, finances and operation of the Company and materials relating to the offer and sale of the Units that have been requested. The Subscriber and its advisors, if any, have received complete and satisfactory answers to any such inquiries.
(k) The Subscriber agrees that he or she will purchase Units securities in the Offering only if his or her intent at such time is to make such purchase for investment purposes and not with a view toward resale.
(lk) If the undersigned Subscriber is a partnership, corporation, trust or other entity, such partnership, corporation, trust or other entity further represents and warrants that: (i) it was not formed for the purpose of investing in the Company; (ii) it is authorized and otherwise duly qualified to purchase and hold the UnitsSecurities; and (iii) that this Agreement has been duly and validly authorized, executed and delivered and constitutes the legal, binding and enforceable obligation of the Subscriber.
(ml) If the Subscriber is not a United States person, such Subscriber hereby represents that it has satisfied itself as to the full observance of the laws of his or her its jurisdiction in connection with any invitation to subscribe for the Units Shares or any use of this Agreement, including (i) the legal requirements within her or her its jurisdiction for the purchase of the Units; Shares, (ii) any foreign exchange restrictions applicable to such purchase; , (iii) any governmental or other consents that may need to be obtained; , and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale or transfer of the UnitsSecurities. Such Subscriber’s subscription and payment for, and his or her continued beneficial ownership of the UnitsSecurities, will not violate any applicable securities laws or other laws of the Subscriber’s jurisdiction.
(m) The Subscriber acknowledges that (i) the Offering Memorandum contains material, non-public information concerning the Company within the meaning of Regulation FD promulgated by the SEC, and (ii) the Subscriber is obtaining such material, non-public information solely for the purpose of considering whether to purchase the Shares pursuant to a private placement that is exempt from registration under the Act. In accordance with Regulation FD and other applicable provisions of the Securities Laws, the Subscriber agrees to keep such information confidential and not to disclose it to any other person or entity except the Subscriber’s legal counsel, other advisors and other representatives who have agreed (i) to keep such information confidential, (ii) to use such information only for the purpose set forth above, and (iii) to comply with applicable securities laws with respect to such information. In addition, the Subscriber further acknowledges that the Subscriber and such legal counsel, other advisors and other representatives are prohibited from trading in the Company’s securities while in possession of material, non-public information and agrees to refrain from purchasing or selling securities of the Company until such material, non-public information has been publicly disseminated by the Company. The Subscriber agrees to indemnify and hold harmless the Company and its officers, directors, employees and affiliates and each other person, if any, who controls any of the foregoing, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty by the Subscriber, or the Subscriber’s breach of, or failure to comply with, any covenant or agreement made by the Subscriber herein or in any other document furnished by the Subscriber to the Company or its officers, directors, employees or affiliates or each other person, if any, who controls any of the foregoing in connection with this transaction.
(n) The Subscriber understands and acknowledges that (i) the Units Securities are being offered and sold to Subscriber without registration under the Act in a private placement that is exempt from the registration provisions of the Act under Section 4(a)(24(2) of the Act and (ii) the availability of such exemption depends in part on, and that the Company will rely upon the accuracy and truthfulness of, the foregoing representations, and such Subscriber hereby consents to such reliance.
(o) That the Subscriber undersigned certifies, under penalty of perjury, (i) that the social security or Tax Identification Number set forth herein is truetime, correct and complete, and (ii) that the Subscriber undersigned is not subject to backup withholding either because the Subscriber undersigned has not been notified that the Subscriber undersigned is subject to backup withholding as a result of a failure to report all interest or dividends, or the Internal Revenue Service has notified the Subscriber undersigned that the Subscriber undersigned is no longer subject to backup withholding.
(p) The amounts invested by the Subscriber it in the Company in the Offering were not and are not directly or indirectly derived from activities that contravene federal, state or international laws and regulations, including anti-money laundering laws and regulations. Federal regulations and Executive Orders administered by the Office of Foreign Assets Control (“OFAC”) prohibit, among other things, the engagement in transactions with, and the provision of services to, certain foreign countries, territories, entities and individuals. The lists of OFAC prohibited countries, territories, persons and entities can be found on the OFAC website at xxxx://xxx.xxxxx.xxx/ofac. In addition, the programs administered by OFAC (the “OFAC Programs”) prohibit dealing with individuals1 or entities in certain countries regardless of whether such individuals or entities appear on the OFAC lists;
Appears in 1 contract
Samples: Subscription Agreement (Natural Gas Fueling & Conversion Inc.)
