Representations and Warranties by the Subscriber. The Subscriber represents and warrants, to the Corporation as follows: (a) The Subscriber is acquiring the Notes and Warrant for the Subscriber’s own account as principal, for investment and not with a view to resale or distribution of all or any part of the Notes or Warrant except in accordance with and as provided for in this Agreement. (b) Immediately prior to the purchase: (i) the Subscriber has such knowledge and experience in financial and business matters that the Subscriber is capable of evaluating the risks and merits of investment in the Notes; and (ii) the Subscriber is able to bear the economic risk of the investment (i.e., at the time of investment the Subscriber could afford a complete loss without hardship). (c) The Subscriber has been informed as to, and is familiar with, the business activities of the Corporation. The Subscriber acknowledges that he or she or it has made the decision to invest in the Note and Warrants solely on the basis of publicly available information about the Corporation in the Corporation’s filings with the Securities and Exchange Commission (“SEC”), copies of which may be accessed on the website of the SEC at xxx.XXX.xxx (the “Public Information”). The Subscriber acknowledges that and that no officer, director, broker-dealer, placement agent, finder or other person affiliated with the Corporation has given Subscriber any information or made any representations, oral or written, other than as provided in the Public Information, on which Subscriber has relied upon in deciding to invest in the Note and Warrant, including without limitation, any information with respect to future operations of the Corporation or the economic returns which may accrue as a result of the purchase of the Note and Warrant. The Subscriber acknowledges having been given the opportunity to review all documents material to an investment in the Notes and Warrant that the Corporation can provide without unreasonable effort or expense. (d) The Subscriber has had an opportunity to ask questions of, and receive answers from, appropriate representatives of the Corporation, including its officers, concerning the Corporation and its business, and the terms and conditions of the Offering, and to obtain such additional information as the Subscriber deems necessary to verify the accuracy and adequacy of the information the Subscriber has obtained. The Subscriber fully understands that this Offering has not been registered under the Securities Act of 1933, as amended (the “Securities Act”) in reliance upon exemptions therefrom, and, accordingly, to the extent that the Subscriber is not supplied with information which would have been contained in a registration statement filed under the Securities Act the Subscriber must rely on the Subscriber’s own access to such information. (e) The Subscriber affirms that the Subscriber is an “accredited investor” as that term is defined and construed pursuant to Rule 501 under the Securities Act because the Subscriber is one or more of the following (check all that apply):
Appears in 2 contracts
Samples: Note and Warrant Subscription Agreement (Calpian, Inc.), Note and Warrant Subscription Agreement (Calpian, Inc.)
Representations and Warranties by the Subscriber. The Subscriber represents and warrants, warrants to the Corporation as followsCompany that:
(a) The Subscriber is acquiring the Notes and Warrant Shares for the Subscriber’s own account account, as principal, for investment purposes only and not with a view any intention to resale resell, distribute or distribution otherwise dispose of all or any part of fractionalize the Notes Shares, in whole or Warrant except in accordance with and as provided for in this Agreementpart.
(b) Immediately prior The Subscriber has been furnished, has carefully read, and has relied solely (except for information obtained pursuant to paragraph (c) below), on the purchase:
(i) information contained in the Private Placement Memorandum and in this Subscription Agreement and the Subscriber has such knowledge not received any other offering literature or prospectus and experience in financial and business matters that no representations or warranties have been made to the Subscriber is capable of evaluating by the risks and merits of investment Company, other than the representations set forth in the Notes; and
(ii) the Subscriber is able to bear the economic risk of the investment (i.e., at the time of investment the Subscriber could afford a complete loss without hardship)this Agreement.
(c) The Subscriber has been informed as had an unrestricted opportunity to: (i) obtain additional information concerning the offering of Shares pursuant to the Private Placement Memorandum (the “Offering”), the Company, and is familiar withany other matters relating directly or indirectly to the Subscriber’s purchase of the Shares; and (ii) ask questions of, and receive answers from the Company concerning the terms and conditions of the Offering and to obtain such additional information as may have been necessary to verify the accuracy of the information contained in the Private Placement Memorandum. In addition to the foregoing, the business activities of the Corporation. The Subscriber acknowledges that he the Subscriber has conducted, or she or it been afforded the opportunity to conduct, an investigation of the Company and has made been offered the decision opportunity to invest in ask representatives of the Note Company questions about the Company’s financial condition and Warrants solely on business and that the basis of Subscriber has obtained such publicly available information about as the Corporation in the Corporation’s filings with the Securities and Exchange Commission (“SEC”), copies of which may be accessed on the website of the SEC at xxx.XXX.xxx (the “Public Information”). The Subscriber acknowledges that and that no officer, director, broker-dealer, placement agent, finder or other person affiliated with the Corporation has given Subscriber any information or made any representations, oral or written, other than as provided in the Public Information, on which Subscriber has relied upon in deciding requested, to invest in the Note extent the Subscriber has deemed necessary, to permit the Subscriber to fully evaluate the merits and Warrant, including without limitation, any information with respect to future operations risks of the Corporation or the economic returns which may accrue as a result of the purchase of the Note and Warrant. The Subscriber acknowledges having been given the opportunity to review all documents material to an investment in the Notes and Warrant that the Corporation can provide without unreasonable effort or expenseCompany.
(d) The Subscriber has had an opportunity to ask questions ofis capable of evaluating the merits and risks of investing in the Company, and receive answers from, appropriate representatives of the Corporation, including its officers, concerning the Corporation and its business, and the terms and conditions of the Offering, and to obtain such additional all information as the Subscriber deems necessary to verify the accuracy and adequacy of the information that the Subscriber has obtainedprovided concerning the Subscriber, the Subscriber’s financial position and knowledge of financial and business matters is true, correct and complete. The Subscriber fully further acknowledges and understands that the Company will rely on the information provided by the Subscriber in this Offering has not been registered Agreement for purposes of complying with Federal and applicable state securities laws.
(e) The Subscriber represents that the Subscriber is an “Accredited Investor” as such term is defined in Rule 501(a)(1-8) of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”).
(f) Except for Xxxxxxxx-Xxxx Securities, the Subscriber has not dealt with a broker in reliance upon exemptions therefromconnection with the purchase of the Shares and agrees to indemnify and hold the Company harmless from any claims for brokerage or fees in connection with the transactions contemplated herein.
(g) The Subscriber has a pre-existing personal or business relationship with the Company, andone of the Company’s officers, accordingly, to or one of the extent that the Company’s affiliates. The Subscriber is not supplied subscribing for the Shares because of or following any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation by a person other than an authorized representative of the Company.
(h) The Subscriber is not relying on the Company with information which would have been contained respect to any legal, investment or tax considerations involved in the purchase, ownership and disposition of the Shares. The Subscriber has relied solely on the advice of, or has consulted with, in regard to the legal, investment and tax considerations involved in the purchase, ownership and disposition of a registration statement filed under the Securities Act the Subscriber must rely on Share, the Subscriber’s own access to such informationlegal counsel, business and/or investment adviser, accountant and tax adviser.
(ei) The Subscriber affirms understands that he is purchasing the Shares in the Company without being furnished any offering literature other than the Private Placement Memorandum, which may not contain all information that might be material to the Subscriber’s investment decision and which information cannot be relied on by the Subscriber as the only representations being made by the Company in connection with the Offering are those contained in this Agreement.
(j) If the Subscriber is a corporation, partnership, trust or other entity: (i) it is authorized and qualified to make an investment in the Company; (ii) the person signing this Subscription Agreement on behalf of such entity has been duly authorized by such entity to do so; and (iii) such entity was not organized or reorganized for the specific purpose of acquiring the Shares.
(k) The Subscriber acknowledges and is aware of the following:
(i) that no federal or state agency has made any finding or determination as to the fairness of offering of Shares for investment or any recommendation or endorsement of the Shares;
(ii) that none of the following has ever been represented, guaranteed, or warranted to the Subscriber by the Company or its agents, or employees or by any other person, expressly or by implication:
(1) the approximate or exact length of time that the Subscriber will be required to remain as an owner of the Shares;
(2) that the prior performance of the Company or any of its affiliates, their respective officers or directors, or their respective associates, agents or employees, will in any way indicate the predictable results of the ownership of the Shares or of the Company, or
(3) that Subscriptions will be accepted in the order in which they are received; and
(iii) that the Company shall incur certain costs and expenses and undertake other actions in reliance upon the irrevocability of the Subscription for the Shares made hereunder.
(l) The Subscriber understands the various risks of an investment in the Company and has carefully reviewed the various risks summarized under “RISK FACTORS” in the Private Placement Memorandum. The Subscriber understands that such risk factors are not exclusive of the risks inherent with an investment in the Company.
(m) The Subscriber is willing and able to bear the economic risks of an “accredited investor” as investment in the Company for an indefinite period of time.
(n) The Subscriber maintains the Subscriber’s domicile, and is not merely a transient or temporary resident, at the address shown on the signature page of this Subscription Agreement
(o) The Subscriber acknowledges that term is defined nothing hereunder shall preclude the Company from seeking and/or procuring additional equity and/or debt financing. The Subscriber acknowledges that the Company may offer additional securities for sale to third parties on similar or different terms, and construed pursuant to Rule 501 under that such sales will dilute the Securities Act because Subscriber’s interest in the Company unless the Subscriber is one or more makes an additional investment in the Company.
(p) The Subscriber has received all documents, records, books and other information pertaining to the Subscriber’s investment in the Company that has been requested by the Subscriber.
(q) The Subscriber understands that the price of the following (check all that apply):Shares offered hereby was determined by the Company without reference to the assets or book value of the Company.
Appears in 2 contracts
Samples: Subscription Agreement (Nugen Holdings, Inc.), Subscription Agreement (InovaChem, Inc.)
Representations and Warranties by the Subscriber. The Subscriber represents and represents, warrants, agrees and convents with and to the Corporation as followsCompany that:
(a) The Subscriber is acquiring the Notes and Warrant for the Subscriber’s own account as principal, for investment and not with a view to resale or distribution of all or any part of the Notes or Warrant except in accordance with and as provided for in this Agreement.
(b) Immediately prior to the purchase:
(i) the Subscriber has such knowledge and experience in financial and business matters that the Subscriber is capable of evaluating the risks and merits of investment in the Notes; and
(ii) the Subscriber is able to bear the economic risk of the investment (i.e., at the time of investment the Subscriber could afford a complete loss without hardship).
(c) The Subscriber has been informed as to, and is familiar with, the business activities of the Corporation. The Subscriber acknowledges that he or she or it has made the decision to invest in the Note and Warrants solely on the basis of publicly available information about the Corporation in the Corporation’s filings with the Securities and Exchange Commission an “accredited investor” (“SECAccredited Investor”), copies of which may be accessed on the website of the SEC at xxx.XXX.xxx (the “Public Information”). The Subscriber acknowledges that and that no officer, director, broker-dealer, placement agent, finder or other person affiliated with the Corporation has given Subscriber any information or made any representations, oral or written, other than as provided such term is defined in the Public Information, on which Subscriber has relied upon in deciding to invest in the Note and Warrant, including without limitation, any information with respect to future operations of the Corporation or the economic returns which may accrue as a result of the purchase of the Note and Warrant. The Subscriber acknowledges having been given the opportunity to review all documents material to an investment in the Notes and Warrant that the Corporation can provide without unreasonable effort or expense.
(d) The Subscriber has had an opportunity to ask questions of, and receive answers from, appropriate representatives of the Corporation, including its officers, concerning the Corporation and its business, and the terms and conditions of the Offering, and to obtain such additional information as the Subscriber deems necessary to verify the accuracy and adequacy of the information the Subscriber has obtained. The Subscriber fully understands that this Offering has not been registered Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities 1933 Act”) in reliance upon exemptions therefrom, and, accordingly, to the extent ). The Subscriber acknowledges and understands that the Company will rely on the information provided (including information regarding the Subscriber’s domicile) and representations made by the Subscriber in this Agreement for purposes of complying with Federal and applicable state securities laws.
(b) The Subscriber is not supplied with information which would have been contained in a registration statement filed under acquiring the Securities Act the Subscriber must rely on for the Subscriber’s own access account, as principal, for investment purposes only and not with any intention to resell, distribute or otherwise dispose of or fractionalize the Securities, in whole or in part.
(c) The Subscriber has had an unrestricted opportunity to: (i) obtain additional information concerning the Company and the Securities, and (ii) ask questions of, and receive answers from the Company concerning the Company and the Securities and to obtain such informationadditional information as may have been necessary to verify the accuracy of the information contained in the Subscription Documents.
(d) Except as otherwise disclosed in writing by the Subscriber to the Company, the Subscriber has not dealt with a broker in connection with the purchase of the Securities and agrees to indemnify and hold the Company harmless from any claims for brokerage or fees in connection with the transactions contemplated herein.
(e) The Subscriber affirms that Subscriber: (i) is authorized and qualified to subscribe for the Securities; (ii) the person signing this Agreement on behalf of the Subscriber has been duly authorized to do so; and (iii) the Subscriber was not organized or reorganized for the specific purpose of acquiring the Securities.
(f) The Subscriber understands that there are significant risks associated with an investment in the Securities and the Company. The Subscriber can afford to bear the risks of an investment in the Securities for an indefinite period of time. The Subscriber is willing and able to completely bear all of the economic risks of an investment in the Securities, including the risk of the loss of the Subscriber’s entire investment in the Company. The Subscriber has read and understands each and all of the provisions of the Note and the Warrant.
(g) Subscriber represents that all subscription payments transferred to the Company originated directly from a bank or brokerage account in the name of the Subscriber and not: (i) in violation of any anti-money laundering law, rule or regulation or (ii) from or on behalf of any Prohibited Investor. For purposes of this Agreement, the terms “accredited investorProhibited Investor” as that term is defined means (x) a person or entity whose name appears on the List of Specially Designated Nationals and construed pursuant to Rule 501 Blocked Persons maintained by the U.S. Office of Foreign Assets Control, (y) a foreign bank without any physical presence in any country (a “Foreign Shell Bank”), or (z) a person or entity resident in or organized or chartered under the Securities Act because laws of a “Non-Cooperative Jurisdiction” (as designated by the Subscriber is one U.S. Financial Action Task Force) or more whose subscription funds are transferred from or through a Foreign Shell Bank, a bank organized or chartered under the laws of a Non-Cooperative Jurisdiction or a foreign country, terrorism sponsoring organization or international narcotics trafficker designated by the following (check all that apply):U.S. Office of Foreign Asset Controls.
Appears in 2 contracts
Samples: Subscription Agreement (CDC Iv LLC), Subscription Agreement (Biodelivery Sciences International Inc)
Representations and Warranties by the Subscriber. The Subscriber represents and warrants, to the Corporation as follows:
(a) The Subscriber is acquiring the Notes and Warrant for the Subscriber’s 's own account as principal, for investment and not with a view to resale or distribution of all or any part of the Notes or Warrant except in accordance with and as provided for in this Agreement.
(b) Immediately prior to the purchase:
(i) the Subscriber has such knowledge and experience in financial and business matters that the Subscriber is capable of evaluating the risks and merits of investment in the Notes; and
(ii) the Subscriber is able to bear the economic risk of the investment (i.e., at the time of investment the Subscriber could afford a complete loss without hardship).
(c) The Subscriber has been informed as to, and is familiar with, the business activities of the Corporation. The Subscriber acknowledges that he or she or it has made the decision to invest in the Note and Warrants solely on the basis of publicly available information about the Corporation in the Corporation’s 's filings with the Securities and Exchange Commission (“SEC”)Commission, copies of which may be accessed on the website Website of the SEC at xxx.XXX.xxx <xxx.xxx.xxx/xxx-xxx/xxxx-xxxx> and entering the search string "Technology Acquisition" (the “"Public Information”"). The Subscriber has been specifically advised that the Form 8-K of the Corporation filed on December 21, 2004, which contains the most recent publicly available financial information on the Corporation, contains only unaudited financial information for periods subsequent to September 30, 2003. It is not anticipated that audited financial statement s for the Corporation's fiscal year ended September 30, 2004 will become publicly available prior to the filing of an amendment to that Form 8-K that is required to be filed not later than February 28, 2005. The Subscriber acknowledges that and that no officer, director, broker-dealer, placement agent, finder or other person affiliated with the Corporation has given Subscriber any information or made any representations, oral or written, other than as provided in the Public Information, on which Subscriber has relied upon in deciding to invest in the Note and Warrant, including without limitation, any information with respect to future operations of the Corporation or the economic returns which may accrue as a result of the purchase of the Note and Warrant. The Subscriber acknowledges having been given the opportunity to review all documents material to an investment in the Notes and Warrant that the Corporation can provide without unreasonable effort or expense.
(d) The Subscriber has had an opportunity to ask questions of, and receive answers from, appropriate representatives of the Corporation, including its officers, concerning the Corporation and its business, and the terms and conditions of the Offering, and to obtain such additional information as the Subscriber deems necessary to verify the accuracy and adequacy of the information the Subscriber has obtained. The Subscriber fully understands that this Offering has not been registered under the Securities Act of 1933, as amended 1933 (the “"Securities Act”") in reliance upon exemptions therefrom, and, accordingly, to the extent that the Subscriber is not supplied with information which would have been contained in a registration statement filed under the Securities Act the Subscriber must rely on the Subscriber’s 's own access to such information.
(e) The Subscriber affirms that the Subscriber is an “"accredited investor” " as that term is defined and construed pursuant to Rule 501 under the Securities Act because the Subscriber is one or more of the following (check all that apply):): ____X_ A natural person whose individual net worth, or joint net worth with that person's spouse, at the time of this purchase exceeds $1,000,000; ______ A natural person who had an individual income in excess of $200,000 in each of the two most recent years (or a joint income with spouse in excess of $300,000 in each of those years) and who reasonably expects to reach the same income level in the current year; ______ A trust with total assets in excess of $5,000,000, not formed for the specific purpose of purchasing the Notes, and whose purchase is directed by a sophisticated person (as described in applicable regulations promulgated under the Act); ______ A bank or savings and loan association; ______ A broker or dealer registered under Section 15 of the Securities Exchange Act of 1934, as amended; ______ An insurance company; ______ An investment company registered under the Investment Company Act of 1940 or a business development company (as defined by said Act), or Small Business Investment Company licensed by the Small Business Administration; ______ An employee benefit plan within the meaning of Title I of ERISA and (A) the investment decision has been made by a plan fiduciary which is either a bank, savings and loan association, insurance company or registered investment advisor, or (B) the plan has total assets in excess of $5,000,000, or (C) the Plan is a self directed plan and its investment decisions are made solely by persons who are accredited investors; ______ A corporation, Massachusetts or similar business trust, partnership, or organization described in 501(c)(3) of the Internal Revenue Code of 1986, as amended, and not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; ______ A director or executive officer of the Corporation; ______ An entity all of the investors in which are "accredited investors."
(f) The Subscriber affirms that all information that the Subscriber has provided to the Corporation either directly or indirectly, concerning the Subscriber, the Subscriber's financial position and the Subscriber's knowledge of financial and business matters is accurate and complete as of the date of this Agreement.
(g) The Subscriber fully understands and agrees that the Subscriber must bear the economic risk of the Subscriber's investment in the Notes and Warrant for an indefinite period of time because, among other reasons, the Notes and Warrant have not been registered under the Securities Act, and, therefore, they cannot be sold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act or, in the opinion of counsel acceptable to the Corporation, an exemption from such registration is available.
(h) The Subscriber understands that no federal or state agency has passed upon the offering of the Notes or made any finding or determination as to the fairness of the offering the Notes.
(i) The Subscriber recognizes that this investment involves a high degree of risk, and the Subscriber has carefully considered whether an investment in the Notes and Warrant is appropriate for the Subscriber. The Subscriber understands that the Notes are Warrant are a suitable investment only for persons who have substantial financial resources and will have no need for liquidity in their investment.
(j) If the Subscription is being made by a person acting in a representative or fiduciary capacity, such person has full power and authority to execute and deliver this Agreement in such capacity and on behalf of the subscribing individual, xxxx, partnership, trust, estate, corporation, or other entity, has full right and power to perform pursuant to this Agreement. The undersigned, will, upon request of the Corporation, furnish the Corporation a true and correct copy of (1) if the Subscriber is a trust, the trust agreement under which it is organized, (2) if the Subscriber is a Partnership, the partnership agreement under which it is organized, and (3) if the Subscriber is a corporation, the Articles of Incorporation and By-laws and a copy (certified by the secretary or other authorized officer) of appropriate corporate resolutions authorizing the specific investment. If the Subscription is being made by a person acting in a representative capacity, the representations and warranties contained in this Agreement, including specifically and without limitation those provided for in paragraph 3(e), shall be deemed to have been made on behalf of the person or persons for whom the undersigned is so purchasing.
(k) The Corporation has not provided to the Subscriber any projections of operating results, revenues, or profits for use in connection with this Notes Offering. If the Subscriber has seen any such projections, the Subscriber understands and agrees that the Subscriber will not rely upon them for purposes of investing in the Notes and Warrant because, among other reasons, the timing, sources and amount of funding to be received by the Corporation is currently uncertain and so that any projections based upon the receipt of such funding will be inherently unreliable.
(l) Subscriber will use its best efforts to keep confidential and not disclose any non-public information received in connection with the Note and Warrant from the Corporation or any of its affiliates or principals, except that Subscriber may disclose such information (i) with the written consent of Corporation, (ii) to Subscriber's affiliates and legal counsel for Subscriber and its affiliates, (iii) to auditors, accounting firms or accountants of Subscriber and its affiliates as may be required in connection with any audit or other review of the books and records of any such entity, and (iv) to any parties as may be required by law, government regulation or order (including without limitation, any regulation or order of an insurance regulatory agency or body), by subpoena or by any other legal, administrative or legislative process. Subscriber also acknowledges and agrees that Subscriber is prohibited from any buying or selling of the Corporation's securities on the basis of this material non-public information until after the information either becomes publicly available by the Corporation (such as in an Amended Report on Form 8-K or in the Corporation's 10-QSB) or ceases to be material, and in no event for at least thirty (30) days from the date hereof.
(m) All representations and warranties set forth above or in any other written statement or document delivered by the Subscriber in connection with the subscription shall be true and correct in all respects on and as of the date of this Agreement and as of the date of acceptance, and they shall survive acceptance and the closing and delivery of the Notes.
Appears in 1 contract
Samples: Note Subscription Agreement (Minrad International, Inc.)
Representations and Warranties by the Subscriber. The Subscriber represents and warrants, to the Corporation as follows:
(a) The Subscriber is acquiring the Notes and Warrant for the Subscriber’s 's own account as principal, for investment and not with a view to resale or distribution of all or any part of the Notes or Warrant except in accordance with and as provided for in this Agreement.
(b) Immediately prior to the purchase:
(i) the Subscriber has such knowledge and experience in financial and business matters that the Subscriber is capable of evaluating the risks and merits of investment in the Notes; and
(ii) the Subscriber is able to bear the economic risk of the investment (i.e., at the time of investment the Subscriber could afford a complete loss without hardship).
(c) The Subscriber has been informed as to, and is familiar with, the business activities of the Corporation. The Subscriber acknowledges that he or she or it has made the decision to invest in the Note and Warrants solely on the basis of publicly available information about the Corporation in the Corporation’s 's filings with the Securities and Exchange Commission (“SEC”)Commission, copies of which may be accessed on the website Website of the SEC at xxx.XXX.xxx <xxx.xxx.xxx/xxx-xxx/xxxx-xxxx> and entering the search string "Technology Acquisition" (the “"Public Information”"). The Subscriber has been specifically advised that the Form 8-K of the Corporation filed on December 21, 2004, which contains the most recent publicly available financial information on the Corporation, contains only unaudited financial information for periods subsequent to September 30, 2003. It is not anticipated that audited financial statement s for the Corporation's fiscal year ended September 30, 2004 will become publicly available prior to the filing of an amendment to that Form 8-K that is required to be filed not later than February 28, 2005. The Subscriber acknowledges that and that no officer, director, broker-dealer, placement agent, finder or other person affiliated with the Corporation has given Subscriber any information or made any representations, oral or written, other than as provided in the Public Information, on which Subscriber has relied upon in deciding to invest in the Note and Warrant, including without limitation, any information with respect to future operations of the Corporation or the economic returns which may accrue as a result of the purchase of the Note and Warrant. The Subscriber acknowledges having been given the opportunity to review all documents material to an investment in the Notes and Warrant that the Corporation can provide without unreasonable effort or expense.
(d) The Subscriber has had an opportunity to ask questions of, and receive answers from, appropriate representatives of the Corporation, including its officers, concerning the Corporation and its business, and the terms and conditions of the Offering, and to obtain such additional information as the Subscriber deems necessary to verify the accuracy and adequacy of the information the Subscriber has obtained. The Subscriber fully understands that this Offering has not been registered under the Securities Act of 1933, as amended 1933 (the “"Securities Act”") in reliance upon exemptions therefrom, and, accordingly, to the extent that the Subscriber is not supplied with information which would have been contained in a registration statement filed under the Securities Act the Subscriber must rely on the Subscriber’s 's own access to such information.
(e) The Subscriber affirms that the Subscriber is an “"accredited investor” " as that term is defined and construed pursuant to Rule 501 under the Securities Act because the Subscriber is one or more of the following (check all that apply):): ______ A natural person whose individual net worth, or joint net worth with that person's spouse, at the time of this purchase exceeds $1,000,000; ______ A natural person who had an individual income in excess of $200,000 in each of the two most recent years (or a joint income with spouse in excess of $300,000 in each of those years) and who reasonably expects to reach the same income level in the current year; __X___ A trust with total assets in excess of $5,000,000, not formed for the specific purpose of purchasing the Notes, and whose purchase is directed by a sophisticated person (as described in applicable regulations promulgated under the Act); ______ A bank or savings and loan association; ______ A broker or dealer registered under Section 15 of the Securities Exchange Act of 1934, as amended; ______ An insurance company; ______ An investment company registered under the Investment Company Act of 1940 or a business development company (as defined by said Act), or Small Business Investment Company licensed by the Small Business Administration; ______ An employee benefit plan within the meaning of Title I of ERISA and (A) the investment decision has been made by a plan fiduciary which is either a bank, savings and loan association, insurance company or registered investment advisor, or (B) the plan has total assets in excess of $5,000,000, or (C) the Plan is a self directed plan and its investment decisions are made solely by persons who are accredited investors; ______ A corporation, Massachusetts or similar business trust, partnership, or organization described in 501(c)(3) of the Internal Revenue Code of 1986, as amended, and not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; ______ A director or executive officer of the Corporation; ______ An entity all of the investors in which are "accredited investors."
(f) The Subscriber affirms that all information that the Subscriber has provided to the Corporation either directly or indirectly, concerning the Subscriber, the Subscriber's financial position and the Subscriber's knowledge of financial and business matters is accurate and complete as of the date of this Agreement.
(g) The Subscriber fully understands and agrees that the Subscriber must bear the economic risk of the Subscriber's investment in the Notes and Warrant for an indefinite period of time because, among other reasons, the Notes and Warrant have not been registered under the Securities Act, and, therefore, they cannot be sold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act or, in the opinion of counsel acceptable to the Corporation, an exemption from such registration is available.
(h) The Subscriber understands that no federal or state agency has passed upon the offering of the Notes or made any finding or determination as to the fairness of the offering the Notes.
(i) The Subscriber recognizes that this investment involves a high degree of risk, and the Subscriber has carefully considered whether an investment in the Notes and Warrant is appropriate for the Subscriber. The Subscriber understands that the Notes are Warrant are a suitable investment only for persons who have substantial financial resources and will have no need for liquidity in their investment.
(j) If the Subscription is being made by a person acting in a representative or fiduciary capacity, such person has full power and authority to execute and deliver this Agreement in such capacity and on behalf of the subscribing individual, xxxx, partnership, trust, estate, corporation, or other entity, has full right and power to perform pursuant to this Agreement. The undersigned, will, upon request of the Corporation, furnish the Corporation a true and correct copy of (1) if the Subscriber is a trust, the trust agreement under which it is organized, (2) if the Subscriber is a Partnership, the partnership agreement under which it is organized, and (3) if the Subscriber is a corporation, the Articles of Incorporation and By-laws and a copy (certified by the secretary or other authorized officer) of appropriate corporate resolutions authorizing the specific investment. If the Subscription is being made by a person acting in a representative capacity, the representations and warranties contained in this Agreement, including specifically and without limitation those provided for in paragraph 3(e), shall be deemed to have been made on behalf of the person or persons for whom the undersigned is so purchasing.
(k) The Corporation has not provided to the Subscriber any projections of operating results, revenues, or profits for use in connection with this Notes Offering. If the Subscriber has seen any such projections, the Subscriber understands and agrees that the Subscriber will not rely upon them for purposes of investing in the Notes and Warrant because, among other reasons, the timing, sources and amount of funding to be received by the Corporation is currently uncertain and so that any projections based upon the receipt of such funding will be inherently unreliable.
(l) Subscriber will use its best efforts to keep confidential and not disclose any non-public information received in connection with the Note and Warrant from the Corporation or any of its affiliates or principals, except that Subscriber may disclose such information (i) with the written consent of Corporation, (ii) to Subscriber's affiliates and legal counsel for Subscriber and its affiliates, (iii) to auditors, accounting firms or accountants of Subscriber and its affiliates as may be required in connection with any audit or other review of the books and records of any such entity, and (iv) to any parties as may be required by law, government regulation or order (including without limitation, any regulation or order of an insurance regulatory agency or body), by subpoena or by any other legal, administrative or legislative process. Subscriber also acknowledges and agrees that Subscriber is prohibited from any buying or selling of the Corporation's securities on the basis of this material non-public information until after the information either becomes publicly available by the Corporation (such as in an Amended Report on Form 8-K or in the Corporation's 10-QSB) or ceases to be material, and in no event for at least thirty (30) days from the date hereof.
(m) All representations and warranties set forth above or in any other written statement or document delivered by the Subscriber in connection with the subscription shall be true and correct in all respects on and as of the date of this Agreement and as of the date of acceptance, and they shall survive acceptance and the closing and delivery of the Notes.
Appears in 1 contract
Samples: Note Subscription Agreement (Minrad International, Inc.)
Representations and Warranties by the Subscriber. The Subscriber represents and warrants, warrants to the Corporation as followsCompany that:
(a) The Subscriber is acquiring the Notes and Warrant Note for the Subscriber’s own account account, as principal, for investment purposes only and not with a view any intention to resale resell, distributes or distribution of all or any part otherwise dispose of the Notes Note, in whole or Warrant except in accordance with and as provided for in this Agreementpart.
(b) Immediately prior to the purchase:
The Subscriber has had an unrestricted opportunity to: (i) obtain information concerning the Offering, including the Note, the Company and its proposed and existing business and assets; (ii) ask questions of, and receive answers from the Company concerning the terms and conditions of the Offering; and (iii) to obtain such additional information as may have been necessary to verify the accuracy of the information contained in this Agreement or otherwise provided.
(c) The Subscriber has such knowledge and experience in financial and business matters that the Subscriber he is capable of evaluating the merits and risks and merits of investment investing in the Notes; and
(ii) Company, and all information that the Subscriber is able to bear has provided concerning the economic risk of the investment (i.e., at the time of investment the Subscriber could afford a complete loss without hardship).
(c) The Subscriber has been informed as to, and is familiar withSubscriber, the Subscriber’s financial position and knowledge of financial and business activities of the Corporation. The Subscriber acknowledges that he or she or it has made the decision to invest in the Note matters is true, correct and Warrants solely on the basis of publicly available information about the Corporation in the Corporation’s filings with the Securities and Exchange Commission (“SEC”), copies of which may be accessed on the website of the SEC at xxx.XXX.xxx (the “Public Information”). The Subscriber acknowledges that and that no officer, director, broker-dealer, placement agent, finder or other person affiliated with the Corporation has given Subscriber any information or made any representations, oral or written, other than as provided in the Public Information, on which Subscriber has relied upon in deciding to invest in the Note and Warrant, including without limitation, any information with respect to future operations of the Corporation or the economic returns which may accrue as a result of the purchase of the Note and Warrant. The Subscriber acknowledges having been given the opportunity to review all documents material to an investment in the Notes and Warrant that the Corporation can provide without unreasonable effort or expensecomplete.
(d) The Subscriber has had an opportunity to ask questions relied solely on the advice of, and receive answers fromor has consulted with, appropriate representatives of the Corporation, including its officers, concerning the Corporation and its business, and the terms and conditions of the Offering, and to obtain such additional information as the Subscriber deems necessary to verify the accuracy and adequacy of the information the Subscriber has obtained. The Subscriber fully understands that this Offering has not been registered under the Securities Act of 1933, as amended (the “Securities Act”) in reliance upon exemptions therefrom, and, accordingly, regard to the extent that legal, investment and tax considerations involved in the Subscriber is not supplied with information which would have been contained in a registration statement filed under the Securities Act the Subscriber must rely on purchase, ownership and disposition of Note, the Subscriber’s own access to such informationlegal counsel, business and/or investment adviser, accountant and tax adviser.
(e) The Subscriber affirms that If the Subscriber is an entity, the Subscriber is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, as the case may be. The Subscriber has all requisite power and authority to own its properties, to carry on its business as presently conducted, to enter into and perform this Agreement, the Note and the agreements, documents and instruments executed, delivered and/or contemplated hereby (collectively, the “Subscription Documents”) to which it is a party and to carry out the transactions contemplated hereby and thereby. The Subscription Documents are valid and binding obligations of the Subscriber, enforceable against it in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws, from time to time in effect, which affect enforcement of creditors’ rights generally. If applicable, the execution, delivery and performance of the Subscription Documents to which it is a party have been duly authorized by all necessary action of the Subscriber. The execution, delivery and performance of the Subscription Documents and the performance of any transactions contemplated by the Subscription Documents will not: (i) violate, conflict with or result in a default (whether after the giving of notice, lapse of time or both) under any contract or obligation to which the Subscriber is a party or by which it or its assets are bound, or any provision of its organizational documents (if an entity), or cause the creation of any lien or encumbrance upon any of the assets of the Subscriber; (ii) violate, conflict with or result in a default (whether after the giving of notice, lapse of time or both) under, any provision of any law, regulation or rule, or any order of, or any restriction imposed by any court or other governmental agency applicable to the Subscriber; (iii) require from the Subscriber any notice to, declaration or filing with, or consent or approval of any governmental authority or other third party other than pursuant to federal or state securities or blue sky laws; or (iv) accelerate any obligation under, or give rise to a right of termination of, any agreement, permit, license or authorization to which the Subscriber is a party or by which it is bound.
(f) At the time the Subscriber was offered the Note, it was, and at the date hereof it is, and on each date on which the Subscriber converts the Note the Subscriber will be, an “accredited investor” as that term is defined and construed pursuant to in Rule 501 501(a) under the Securities Act because Act. The Subscriber hereby represents that neither the Subscriber nor any of its Rule 506(d) Related Parties is one a “bad actor” within the meaning of Rule 506(d) promulgated under the Securities Act. For purposes of this Agreement, “Rule 506(d) Related Party” shall mean a person or more entity covered by the “Bad Actor disqualification” provision of Rule 506(d) of the following (check all that apply):Securities Act.
Appears in 1 contract
Representations and Warranties by the Subscriber. The Subscriber represents and warrants, warrants to the Corporation as followsCompany that:
(a) The Subscriber is acquiring the Notes and Warrant for the Subscriber’s own account account, as principal, for investment purposes only and not with a view any intention to resale resell, distributes or distribution of all or any part otherwise dispose of the Notes Notes, as the case may be, in whole or Warrant except in accordance with and as provided for in this Agreementpart.
(b) Immediately prior to the purchase:
The Subscriber has had an unrestricted opportunity to: (i) obtain information concerning the Offering, including the Notes, the Company and its proposed and existing business and assets; and (ii) ask questions of, and receive answers from the Company concerning the terms and conditions of the Offering and to obtain such additional information as may have been necessary to verify the accuracy of the information contained in the this Agreement or otherwise provided.
(c) The Subscriber is an Accredited Investor, within the meaning of Securities and Exchange Commission (“SEC”) Rule 501 of Regulation D, and has such knowledge and experience in financial and business matters that the Subscriber he is capable of evaluating the merits and risks and merits of investment investing in the Notes; and
(ii) Company, and all information that the Subscriber is able to bear has provided concerning the economic risk of the investment (i.e., at the time of investment the Subscriber could afford a complete loss without hardship).
(c) The Subscriber has been informed as to, and is familiar withSubscriber, the Subscriber’s financial position and knowledge of financial and business activities of the Corporationmatters is true, correct and complete. The Subscriber acknowledges and understands that he or she or it has made the decision to invest Company will rely on the information provided by the Subscriber in this Agreement and in the Note Subscriber Questionnaire annexed hereto as Exhibit A for purposes of complying with Federal and Warrants solely on the basis of publicly available information about the Corporation in the Corporation’s filings with the Securities and Exchange Commission (“SEC”), copies of which may be accessed on the website of the SEC at xxx.XXX.xxx (the “Public Information”). The Subscriber acknowledges that and that no officer, director, broker-dealer, placement agent, finder or other person affiliated with the Corporation has given Subscriber any information or made any representations, oral or written, other than as provided in the Public Information, on which Subscriber has relied upon in deciding to invest in the Note and Warrant, including without limitation, any information with respect to future operations of the Corporation or the economic returns which may accrue as a result of the purchase of the Note and Warrant. The Subscriber acknowledges having been given the opportunity to review all documents material to an investment in the Notes and Warrant that the Corporation can provide without unreasonable effort or expenseapplicable state securities laws.
(d) The Subscriber has had an opportunity to ask questions of, and receive answers from, appropriate representatives of the Corporation, including its officers, concerning the Corporation and its business, and the terms and conditions of the Offering, and to obtain such additional information Except as otherwise disclosed in writing by the Subscriber deems necessary to verify the accuracy and adequacy of the information Company, the Subscriber has obtained. The Subscriber fully understands that this Offering has not been registered under dealt with a broker in connection with the Securities Act purchase of 1933, as amended (the “Securities Act”) Notes and agrees to indemnify and hold the Company and its officers and directors harmless from any claims for brokerage or fees in reliance upon exemptions therefrom, and, accordingly, to connection with the extent that the Subscriber is not supplied with information which would have been contained in a registration statement filed under the Securities Act the Subscriber must rely on the Subscriber’s own access to such informationtransactions contemplated herein.
(e) The Subscriber affirms is not relying on the Company or any of its management, officers or employees with respect to any legal, investment or tax considerations involved in the purchase, ownership and disposition of Notes. The Subscriber has relied solely on the advice of, or has consulted with, in regard to the legal, investment and tax considerations involved in the purchase, ownership and disposition of Notes, the Subscriber’s own legal counsel, business and/or investment adviser, accountant and tax adviser.
(f) The Subscriber understands that the Notes, or the securities into which either of them may convert or be exercised for, cannot be sold, assigned, transferred, exchanged, hypothecated or pledged, or otherwise disposed of or encumbered except in accordance with the Securities Act or the 1934 Securities and Exchange Act, as amended (the “Exchange Act”), and that no market will exist for the resale of any such securities. In addition, the Subscriber understands that the Notes, or the securities into which they may convert, have not been registered under the Securities Act, or under any applicable state securities or blue sky laws or the laws of any other jurisdiction, and cannot be resold unless they are so registered or unless an exemption from registration is available. The Subscriber understands that there is no current plan to register the Notes, or the securities into which they may convert.
(g) The Subscriber is willing and able to bear the economic and other risks of an investment in the Company for an indefinite period of time. The Subscriber has read and understands the provisions of this Agreement.
(h) The Subscriber maintains the Subscriber’s domicile, and is not merely a transient or temporary resident, at the residence address shown on the signature page of this Agreement.
(i) The Subscriber understands that the Company has made available to the Subscriber and the Subscriber’s accountants, attorneys and other advisors full and complete information concerning the financial structure of the Company, and any and all data requested by the Subscriber as a basis for estimating the potential profits and losses of the Company and the Subscriber acknowledges that the Subscriber has either reviewed such information or has waived review of such information.
(j) The Subscriber is not participating in the Offering as a result of or subsequent to: (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio; (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising; or (iii) any registration statement the Company may have filed with the Securities and Exchange Commission.
(k) If the Subscriber is an “accredited investor” as that term is defined and construed pursuant to Rule 501 under the Securities Act because entity, the Subscriber is one duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or more organization, as the case may be. The Subscriber has all requisite power and authority to own its properties, to carry on its business as presently conducted, to enter into and perform the Subscription and the agreements, documents and instruments executed, delivered and/or contemplated hereby (collectively, the “Subscription Documents”) to which it is a party and to carry out the transactions contemplated hereby and thereby. The Subscription Documents are valid and binding obligations of the following Subscriber, enforceable against it in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws, from time to time in effect, which affect enforcement of creditors’ rights generally. If applicable, the execution, delivery and performance of the Subscription Documents to which it is a party have been duly authorized by all necessary action of the Subscriber. The execution, delivery and performance of the Subscription Documents and the performance of any transactions contemplated by the Subscription Documents will not (check all i) violate, conflict with or result in a default (whether after the giving of notice, lapse of time or both) under any contract or obligation to which the Subscriber is a party or by which it or its assets are bound, or any provision of its organizational documents (if an entity), or cause the creation of any lien or encumbrance upon any of the assets of the Subscriber; (ii) violate, conflict with or result in a default (whether after the giving of notice, lapse of time or both) under, any provision of any law, regulation or rule, or any order of, or any restriction imposed by any court or other governmental agency applicable to the Subscriber; (iii) require from the Subscriber any notice to, declaration or filing with, or consent or approval of any governmental authority or other third party other than pursuant to federal or state securities or blue sky laws; or (iv) accelerate any obligation under, or give rise to a right of termination of, any agreement, permit, license or authorization to which the Subscriber is a party or by which it is bound.
(l) The Subscriber acknowledges and agrees that apply):the Company intends, in the future, to raise additional funds to expand its business which may include, without limitation, the need to: fund more rapid expansion; fund additional marketing expenditures; enhance its operating infrastructure; hire additional personnel; respond to competitive pressures; or acquire complementary businesses or necessary technologies.
(m) The Subscriber acknowledges and agrees that the Company will have broad discretion with respect to the use of the proceeds from this Offering, and investors will be relying on the judgment of management regarding the application of these proceeds.
(n) The Subscriber understands the various risks of an investment in the Company, and has carefully reviewed the various risk factors described in the Company’s various public filings, including but not limited to its 10Qs and 10Ks.
Appears in 1 contract
Representations and Warranties by the Subscriber. The Subscriber represents and warrants, warrants to the Corporation as followsCompany that:
(a) The Subscriber is acquiring the Notes and Warrant for the Subscriber’s own account account, as principal, for investment purposes only and not with a view any intention to resale resell, distribute or distribution of all or any part otherwise dispose of the Notes Notes, as the case may be, in whole or Warrant except in accordance with and as provided for in this Agreementpart.
(b) Immediately prior to the purchase:
The Subscriber has had an unrestricted opportunity to: (i) obtain information concerning the Offering, including the Notes, the Company and its proposed and existing business and assets; and (ii) ask questions of, and receive answers from the Company concerning the terms and conditions of the Offering and to obtain such additional information as may have been necessary to verify the accuracy of the information contained in the this Agreement or otherwise provided.
(c) The Subscriber is an Accredited Investor, within the meaning of Securities and Exchange Commission (“SEC”) Rule 501 of Regulation D, and has such knowledge and experience in financial and business matters that the Subscriber he is capable of evaluating the merits and risks and merits of investment investing in the Notes; and
(ii) Company, and all information that the Subscriber is able to bear has provided concerning the economic risk of the investment (i.e., at the time of investment the Subscriber could afford a complete loss without hardship).
(c) The Subscriber has been informed as to, and is familiar withSubscriber, the Subscriber’s financial position and knowledge of financial and business activities of the Corporationmatters is true, correct and complete. The Subscriber acknowledges and understands that he or she or it has made the decision to invest Company will rely on the information provided by the Subscriber in this Agreement and in the Note Subscriber Questionnaire annexed hereto as Exhibit A for purposes of complying with federal and Warrants solely on the basis of publicly available information about the Corporation in the Corporation’s filings with the Securities and Exchange Commission (“SEC”), copies of which may be accessed on the website of the SEC at xxx.XXX.xxx (the “Public Information”). The Subscriber acknowledges that and that no officer, director, broker-dealer, placement agent, finder or other person affiliated with the Corporation has given Subscriber any information or made any representations, oral or written, other than as provided in the Public Information, on which Subscriber has relied upon in deciding to invest in the Note and Warrant, including without limitation, any information with respect to future operations of the Corporation or the economic returns which may accrue as a result of the purchase of the Note and Warrant. The Subscriber acknowledges having been given the opportunity to review all documents material to an investment in the Notes and Warrant that the Corporation can provide without unreasonable effort or expenseapplicable state securities laws.
(d) The Subscriber has had an opportunity to ask questions of, and receive answers from, appropriate representatives of the Corporation, including its officers, concerning the Corporation and its business, and the terms and conditions of the Offering, and to obtain such additional information Except as otherwise disclosed in writing by the Subscriber deems necessary to verify the accuracy and adequacy of the information Company, the Subscriber has obtained. The Subscriber fully understands that this Offering has not been registered under dealt with a broker in connection with the Securities Act purchase of 1933, as amended (the “Securities Act”) Notes and agrees to indemnify and hold the Company and its officers and directors harmless from any claims for brokerage or fees in reliance upon exemptions therefrom, and, accordingly, to connection with the extent that the Subscriber is not supplied with information which would have been contained in a registration statement filed under the Securities Act the Subscriber must rely on the Subscriber’s own access to such informationtransactions contemplated herein.
(e) The Subscriber affirms is not relying on the Company or any of its management, officers or employees with respect to any legal, investment or tax considerations involved in the purchase, ownership and disposition of Notes. The Subscriber has relied solely on the advice of, or has consulted with, in regard to the legal, investment and tax considerations involved in the purchase, ownership and disposition of Notes, the Subscriber’s own legal counsel, business and/or investment adviser, accountant and tax adviser.
(f) The Subscriber understands that the Notes cannot be sold, assigned, transferred, exchanged, hypothecated or pledged, or otherwise disposed of or encumbered except in accordance with the Securities Act or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and that no market will exist for the resale of any such securities. In addition, the Subscriber understands that the Notes have not been registered under the Securities Act, or under any applicable state securities or blue sky laws or the laws of any other jurisdiction, and cannot be resold unless they are so registered or unless an exemption from registration is available. The Subscriber understands that there is no current plan to register the Notes.
(g) The Subscriber is willing and able to bear the economic and other risks of an investment in the Company for an indefinite period of time. The Subscriber has read and understands the provisions of this Agreement.
(h) The Subscriber maintains the Subscriber’s domicile, and is not merely a transient or temporary resident, at the residence address shown on the signature page of this Agreement.
(i) The Subscriber is not participating in the Offering as a result of or subsequent to: (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio; (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising; or (iii) any registration statement the Company may have filed with the Securities and Exchange Commission.
(j) If the Subscriber is an “accredited investor” as that term is defined and construed pursuant to Rule 501 under the Securities Act because entity, the Subscriber is one duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or more organization, as the case may be. The Subscriber has all requisite power and authority to own its properties, to carry on its business as presently conducted, to enter into and perform the Subscription and the agreements, documents and instruments executed, delivered and/or contemplated hereby (collectively, the “Subscription Documents”) to which it is a party and to carry out the transactions contemplated hereby and thereby. The Subscription Documents are valid and binding obligations of the following (check Subscriber, enforceable against it in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws, from time to time in effect, which affect enforcement of creditors’ rights generally. If applicable, the execution, delivery and performance of the Subscription Documents to which it is a party have been duly authorized by all that apply):necessary action of the
Appears in 1 contract
Representations and Warranties by the Subscriber. The Subscriber represents and warrants, warrants to the Corporation as followsCompany that:
(a) The Subscriber is acquiring the Notes and Warrant for the Subscriber’s own account account, as principal, for investment purposes only and not with a view any intention to resale resell, distributes or distribution of all or any part otherwise dispose of the Notes Notes, as the case may be, in whole or Warrant except in accordance with and as provided for in this Agreementpart.
(b) Immediately prior to the purchase:
The Subscriber has had an unrestricted opportunity to: (i) obtain information concerning the Offering, including the Notes, the Company and its proposed and existing business and assets; and (ii) ask questions of, and receive answers from the Company concerning the terms and conditions of the Offering and to obtain such additional information as may have been necessary to verify the accuracy of the information contained in the this Agreement or otherwise provided.
(c) The Subscriber is an Accredited Investor, within the meaning of Securities and Exchange Commission (“SEC”) Rule 501 of Regulation D, and has such knowledge and experience in financial and business matters that the Subscriber he is capable of evaluating the merits and risks and merits of investment investing in the Notes; and
(ii) Company, and all information that the Subscriber is able to bear has provided concerning the economic risk of the investment (i.e., at the time of investment the Subscriber could afford a complete loss without hardship).
(c) The Subscriber has been informed as to, and is familiar withSubscriber, the Subscriber’s financial position and knowledge of financial and business activities of the Corporationmatters is true, correct and complete. The Subscriber acknowledges and understands that he or she or it has made the decision to invest Company will rely on the information provided by the Subscriber in this Agreement and in the Note Subscriber Questionnaire annexed hereto as Exhibit A for purposes of complying with federal and Warrants solely on the basis of publicly available information about the Corporation in the Corporation’s filings with the Securities and Exchange Commission (“SEC”), copies of which may be accessed on the website of the SEC at xxx.XXX.xxx (the “Public Information”). The Subscriber acknowledges that and that no officer, director, broker-dealer, placement agent, finder or other person affiliated with the Corporation has given Subscriber any information or made any representations, oral or written, other than as provided in the Public Information, on which Subscriber has relied upon in deciding to invest in the Note and Warrant, including without limitation, any information with respect to future operations of the Corporation or the economic returns which may accrue as a result of the purchase of the Note and Warrant. The Subscriber acknowledges having been given the opportunity to review all documents material to an investment in the Notes and Warrant that the Corporation can provide without unreasonable effort or expenseapplicable state securities laws.
(d) The Subscriber has had an opportunity to ask questions of, and receive answers from, appropriate representatives of the Corporation, including its officers, concerning the Corporation and its business, and the terms and conditions of the Offering, and to obtain such additional information Except as otherwise disclosed in writing by the Subscriber deems necessary to verify the accuracy and adequacy of the information Company, the Subscriber has obtained. The Subscriber fully understands that this Offering has not been registered under dealt with a broker in connection with the Securities Act purchase of 1933, as amended (the “Securities Act”) Notes and agrees to indemnify and hold the Company and its officers and directors harmless from any claims for brokerage or fees in reliance upon exemptions therefrom, and, accordingly, to connection with the extent that the Subscriber is not supplied with information which would have been contained in a registration statement filed under the Securities Act the Subscriber must rely on the Subscriber’s own access to such informationtransactions contemplated herein.
(e) The Subscriber affirms is not relying on the Company or any of its management, officers or employees with respect to any legal, investment or tax considerations involved in the purchase, ownership and disposition of Notes. The Subscriber has relied solely on the advice of, or has consulted with, in regard to the legal, investment and tax considerations involved in the purchase, ownership and disposition of Notes, the Subscriber’s own legal counsel, business and/or investment adviser, accountant and tax adviser.
(f) The Subscriber understands that the Notes, or the securities into which it may convert, cannot be sold, assigned, transferred, exchanged, hypothecated or pledged, or otherwise disposed of or encumbered except in accordance with the Securities Act or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and that no market will exist for the resale of any such securities. In addition, the Subscriber understands that the Notes or the securities into which they may convert, have not been registered under the Securities Act, or under any applicable state securities or blue sky laws or the laws of any other jurisdiction, and cannot be resold unless they are so registered or unless an exemption from registration is available. The Subscriber understands that there is no current plan to register the Notes or the securities into which they may convert.
(g) The Subscriber is willing and able to bear the economic and other risks of an investment in the Company for an indefinite period of time. The Subscriber has read and understands the provisions of this Agreement.
(h) The Subscriber maintains the Subscriber’s domicile, and is not merely a transient or temporary resident, at the residence address shown on the signature page of this Agreement.
(i) The Subscriber is not participating in the Offering as a result of or subsequent to: (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio; (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising; or (iii) any registration statement the Company may have filed with the Securities and Exchange Commission.
(j) If the Subscriber is an entity, the Subscriber is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, as the case may be. The Subscriber has all requisite power and authority to own its properties, to carry on its business as presently conducted, to enter into and perform the Subscription and the agreements, documents and instruments executed, delivered and/or contemplated hereby (collectively, the “Subscription Documents”) to which it is a party and to carry out the transactions contemplated hereby and thereby. The Subscription Documents are valid and binding obligations of the Subscriber, enforceable against it in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws, from time to time in effect, which affect enforcement of creditors’ rights generally. If applicable, the execution, delivery and performance of the Subscription Documents to which it is a party have been duly authorized by all necessary action of the Subscriber. The execution, delivery and performance of the Subscription Documents and the performance of any transactions contemplated by the Subscription Documents will not: (i) violate, conflict with or result in a default (whether after the giving of notice, lapse of time or both) under any contract or obligation to which the Subscriber is a party or by which it or its assets are bound, or any provision of its organizational documents (if an entity), or cause the creation of any lien or encumbrance upon any of the assets of the Subscriber; (ii) violate, conflict with or result in a default (whether after the giving of notice, lapse of time or both) under, any provision of any law, regulation or rule, or any order of, or any restriction imposed by any court or other governmental agency applicable to the Subscriber; (iii) require from the Subscriber any notice to, declaration or filing with, or consent or approval of any governmental authority or other third party other than pursuant to federal or state securities or blue sky laws; or (iv) accelerate any obligation under, or give rise to a right of termination of, any agreement, permit, license or authorization to which the Subscriber is a party or by which it is bound.
(k) The Subscriber acknowledges and agrees that the Company intends, in the future, to raise additional funds to expand its business which may include, without limitation, the need to: fund more rapid expansion; fund additional marketing expenditures; enhance its operating infrastructure; hire additional personnel; respond to competitive pressures; or acquire complementary businesses or necessary technologies.
(l) The Subscriber acknowledges and agrees that the Company will have broad discretion with respect to the use of the proceeds from this Offering, and investors will be relying on the judgment of management regarding the application of these proceeds.
(m) At the time the Subscriber was offered the Notes, it was, and at the date hereof it is, and on each date on which the Subscriber converts the Notes the Subscriber will be, an “accredited investor” as that term is defined and construed pursuant to in Rule 501 501(a) under the Securities Act because Act. The Subscriber hereby represents that neither the Subscriber nor any of its Rule 506(d) Related Parties is one a “bad actor” within the meaning of Rule 506(d) promulgated under the Securities Act. For purposes of this Agreement, “Rule 506(d) Related Party” shall mean a person or more entity covered by the “Bad Actor disqualification” provision of Rule 506(d) of the following (check all that apply):Securities Act.
Appears in 1 contract
