Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the Investor hereby represents and warrants to the Company as follows: a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED. b. The Investor (i) has no need for liquidity in the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares. c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction. d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon. e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto. f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.” g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares. h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company. i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration. j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary. k. The Investor acknowledges and is aware of the following: (i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company; (ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment; (iii) that the Company has no current plan or intention to issue dividends with respect to the Shares; (iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to: (A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or (B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 5 contracts
Samples: Common Stock Purchase Agreement (American Dg Energy Inc), Common Stock Purchase Agreement (American Dg Energy Inc), Common Stock Purchase Agreement (American Dg Energy Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to and agrees with the Company as followsthat each of the following statements will be true on the date hereof:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (i) has no need for liquidity in the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Such Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “"accredited investor”, " as such that term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. amended (“Securities Act”);
(ii) The Investor is fully aware that acquiring the Common Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. the Preferred Shares for the Investor's own account as principal;
(iii) The Investor is fully aware understands that he or she (A) it must bear the economic risk of his or her an investment in the Company Common Shares and the Preferred Shares for an indefinite period of time because because, among other reasons, there is currently no established market for either the Common Shares have not been registered under or the Securities Act, and, therefore, cannot Preferred Shares and the offer and sale of the Common Shares and the Preferred Shares are intended to be offered or sold unless they are subsequently registered exempt from registration under the Securities Act by virtue of Section 4(2) of the Securities Act and are intended to be exempt from registration under any applicable state securities laws, and (B) notwithstanding the consent of the Company, neither the Common Shares nor the Preferred Shares may be sold, transferred, hypothecated or pledged, except pursuant to an exemption from such effective registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares statement under the Securities Act and under the applicable state securities laws or pursuant to comply with an available exemption from the registration requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule the applicable state securities laws established to the satisfaction of the Securities Company and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Common Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legalPreferred Shares, tax, and other matters concerning an investment in the Company and has done so, except to the extent provided in this Agreement, or to assist such Investor in complying with any exemption from the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Sharesregistration thereof;
(iv) that there The Investor (A) has never been furnished with, and hereby acknowledges the receipt of, a copy of any representation, guarantee or warranty made documents which have been provided to the Investor by any brokerupon the Investor's request, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) understands the past performance risks of, and other considerations relating to, its acquisition of the Common Shares and the Preferred Shares, (C) understands that, to the extent that any information set forth in any material previously presented to it is inconsistent with the provisions of this Agreement, the provisions of this Agreement shall prevail and supersede such prior information, and (D) the Investor has been given the opportunity to obtain such additional information that it believes is necessary to verify the accuracy of the information contained in any material previously presented to it;
(v) The Investor has such knowledge and experience in financial affairs that it is capable of evaluating the merits and risks of acquiring the Common Shares and the Preferred Shares, and the Investor has not relied in connection with this investment upon any representations, warranties or experience agreements other than those set forth in this Agreement;
(vi) With respect to the tax and other economic considerations related to this investment, the Investor has relied only on the part advice of the officers Investor's own professional advisers; and
(vii) A legend substantially in the following form will be placed on the certificates representing the Common Shares and the Preferred Shares to be issued to the Investor; “The shares represented by this certificate have not been registered under the Securities Act of 1933, as amended, and may not be sold, transferred or directors otherwise disposed of in the Companyabsence of an effective registration statement under such Act or an opinion of counsel satisfactory to a21, or of any other person, Inc. to the effect that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;registration is not required.”
Appears in 3 contracts
Samples: Subscription Agreement (A21 Inc), Subscription Agreement (A21 Inc), Subscription Agreement (A21 Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to warrants, as of the Company Closing Date, as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY(a) It is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act. It is purchasing the Notes and the shares of Common Stock, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTORif any, issuable upon conversion thereof for its own account solely for investment purposes and not with a view to the resale or distribution of the Notes or such shares of Common Stock. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDIt has not been formed for the specific purpose of acquiring the Notes or such shares of Common Stock.
b. The Investor (ib) It has no need for liquidity such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of investing in the investment Notes and shares of Common Stock, if any, issuable upon conversion thereof, and it is experienced in the Shares, (ii) investing in capital markets and is able to bear the substantial economic risks risk of investing in the Notes and such shares of Common Stock, including a complete loss of such investment.
(c) It is aware that an investment in the Shares for Notes and shares of Common Stock, if any, issuable upon conversion thereof involves a high degree of risk, and such securities are, therefore, a speculative investment.
(d) The Company has not given any investment advice or rendered any opinion to it as to whether an indefinite periodinvestment in the Notes or shares of Common Stock, if any, issuable upon conversion thereof is prudent or suitable.
(e) It acknowledges that it has (i) had the opportunity to ask questions and receive answers from the Company, (ii) been furnished with all other materials that it considers relevant to an investment in the Notes and shares of Common Stock, if any, issuable upon a conversion thereof and (iii) at been given the present timeopportunity fully to perform its own due diligence, could afford in each case, to the complete loss of such investment extent it has determined adequate to invest in the SharesNotes and shares of Common Stock, if any, issuable upon conversion thereof.
c. The address set forth at (f) It has consulted its own legal, accounting, financial and tax advisors to extent it deems appropriate.
(g) It has not engaged the end services of this Agreement is the Investor's true and correct residencea broker, and the Investor investment banker or finder to contact any potential investor nor has no present intention of changing such residence it agreed to pay any commission, fee or other remuneration to any other state third party to solicit or jurisdictioncontact any potential investor.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor (h) It understands that the Shares offer and sale of the Notes and shares of Common Stock, if any, issuable upon conversion thereof have not been registered under the Securities Act, nor pursuant to are “restricted securities” (within the provisions meaning of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which Act) and it understands is not nowpurchasing the Notes and shares of Common Stock, and will not likely beif any, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased issuable upon conversion thereof in accordance with a view to or for valid exemption from the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" registration requirements under the Securities Exchange Act Act. It acknowledges that it will receive the Notes and (in certain circumstances) shares of 1934Common Stock, as amendedif any, the provisions issuable upon conversion thereof with a restrictive legend imprinted upon them. It will not offer, sell, pledge, hedge or otherwise transfer any Notes or shares of Rule 144 promulgated under Common Stock, if any, issuable upon conversion thereof except in a transaction that complies with the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessaryapplicable securities laws.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree It has not been solicited by any Person to purchase any Notes or share of risk of loss by the Investor Common Stock issuable upon conversion of the Investor's entire investment in Notes by means of any general solicitation or advertising within the Company;meaning of the Securities Act.
(iij) that there is no guarantee that Neither it nor any of its Affiliates has, in connection with the Investor will realize transactions contemplated by this Agreement, directly or indirectly, engaged in any gain from his Hedging and Short Sales in connection with the Notes or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length shares of time that the Investor will be required to remain as owner Common Stock issuable upon conversion of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;Notes.
Appears in 3 contracts
Samples: Senior Convertible Note Purchase Agreement (Scynexis Inc), Senior Convertible Note Purchase Agreement (Scynexis Inc), Senior Convertible Note Purchase Agreement (Scynexis Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and ---------------------------------------------- warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. (a) The Investor (i) has no need Note is being purchased for liquidity in the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true own account and correct residencenot with the view to, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor for resale in connection with the Shares and if so madewith, has not been relied upon.
e. any distribution or public offering thereof. The Investor understands that neither the Shares Note nor the Conversion Securities have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption any state securities laws by reason of their contemplated issuance in transactions exempt from such the registration requirements of the Securities Act and applicable state securities laws and that the reliance of the Company and others upon these exemptions is availablepredicated in part upon this representation by the Investor. The Investor further understands that the Company has no intention Note and is under no obligation to register its Shares the Conversion Securities may not be transferred or resold without registration under the Securities Act and any applicable state securities laws, or pursuant to comply with an exemption from the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Securities Act and applicable state securities laws.
(b) The Investor's principal place of business is located at the address set forth on the signature page hereto. The Investor qualifies as an "accredited investor," as defined in Rule 144 501 of Regulation D under the Securities Act (which it understands is not nowAct. The Investor acknowledges that the Company has made available to the Investor at a reasonable time prior to the execution of this Agreement the opportunity to ask questions and receive answers concerning the business, operations and will not likely be, available) or any rule financial condition of the Securities Company and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rulesale of securities contemplated by this Agreement and to obtain any additional information requested by such Investor. The Investor further understands that in connection with sales is able to bear the loss of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's its entire investment in the Company;Shares and the Conversion Securities and has such knowledge and experience of financial and business matters that he is capable of evaluating the merits and risks of the investment to be made pursuant to this Agreement. However, neither the foregoing nor any other due diligence investigation conducted by such Investor or on its behalf shall limit, modify or affect the representations and warranties of the Company set forth in Section 3 of this Agreement or the right of such Investor to rely thereon.
(iic) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company This Agreement has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor duly authorized by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience all necessary action on the part of the officers or directors Investor, has been duly executed and delivered by such Investor and is a valid and binding agreement of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;Investor.
Appears in 3 contracts
Samples: Bridge Loan Agreement (Optical Sensors Inc), Bridge Loan Agreement (Optical Sensors Inc), Bridge Loan Agreement (Optical Sensors Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants as follows to the Company as followsat the date of this Agreement and at each Closing Date and acknowledges and confirms that the Company is relying on such representations and warranties in connection with the offer, sale and issuance of the Securities to the Investor:
a. (a) THE INVESTOR HAS READ CAREFULLY KNOWLEDGE IN FINANCIAL AND UNDERSTANDS THIS AGREEMENT BUSINESS AFFAIRS, IS CAPABLE OF EVALUATING THE MERITS AND HAS CONSULTED RISKS OF AN INVESTMENT IN THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYSECURITIES, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING IS ABLE TO BEAR THE BUSINESS AND OPERATIONS ECONOMIC RISK OF SUCH INVESTMENT EVEN IF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDENTIRE INVESTMENT IS LOST;
(b) The Investor has not been provided with a prospectus, an offering memorandum or any other document in connection with its subscription for Securities and the decision to subscribe for Securities and execute this Agreement has not been based upon any verbal or written representation made by or on behalf of the Company or any employee or agent of the Company;
(c) The distribution of the Securities has not been made through, or as a result of, and is not being accompanied by, (i) a general solicitation, (ii) any advertisement including articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television , or (iii) any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(d) The Investor is eligible to purchase the Securities pursuant to an exemption from the prospectus requirements of Canadian Securities Laws. The Investor has completed and delivered to the Company the Canadian Investor Certificate annexed to this Schedule II as Annex II-1, evidencing the Investor's status and criteria for reliance on the relevant prospectus exemption under Canadian Securities Laws and: (i) confirms that it complies with the criteria for reliance on the prospectus exemption and the truth and accuracy of all statements made in such certificate as of the date of this Agreement and as of each Closing Date; (ii) understands that the Company is required to verify that the Investor satisfies the relevant criteria to qualify for the prospectus exemption; and (iii) may be required to provide additional information or documentation to evidence compliance with the prospectus exemption.
b. (e) The Investor is resident of a province of territory of Canada, and, where required, is purchasing the Securities as principal;
(f) The Investor has been independently advised as to and is aware of the resale restrictions under Canadian Securities Laws with respect to the Securities;
(g) The Investor has obtained such legal and tax advice as it considers appropriate in connection with the offer, sale and issuance of the Securities and the execution, delivery and performance by it of this Agreement and the transactions contemplated by the Transaction Documents. The Investor is not relying on the Company, its affiliates or its counsel in this regard;
(h) None of the funds that the Investor is using to purchase the Securities are to the knowledge of the Investor, proceeds obtained or derived, directly or indirectly, as a result of illegal activities;
(i) No Person has made any oral or written representations to the Investor: (i) that any Person will resell or repurchase; (ii) that any Person will refund the purchase price of the Securities; or (iii) as to the future value or price of any of the Securities;
(j) The funds representing the aggregate Purchase Price advanced by the Investor are not proceeds of crime as defined in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the "PCMLTFA"). To the Investor's knowledge none of the subscription funds to be provided by the Investor (i) has no need for liquidity in have been or will be derived from or related to any activity that is deemed criminal under the investment in the Shareslaws of Canada or any other applicable jurisdiction, or (ii) is able to bear the substantial economic risks are being tendered on behalf of an investment in the Shares for an indefinite period, and a person or entity (iiiA) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in with whom the Company reasonably requested by the Investor have would be prohibited from dealing with under applicable money laundering, terrorist financing, economic sanctions, criminal or other similar laws or regulations or (B) who has not been made available identified to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands acknowledges that the Shares have not been registered under Company may in the Securities Actfuture be required by law to disclose the Investor's name and other information relating to this Agreement and the Investor's subscription hereunder, nor on a confidential basis pursuant to the provisions of the securities laws PCMLTFA or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act or regulations and in the laws of such jurisdictions. The Investor represents to shall promptly notify the Company if the Investor discovers that he is an “accredited investor”, as such term is defined in Rule 501(a) any of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are foregoing representations ceases to be sold in reliance upon such exemptions based upon his or her representationstrue, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in to provide the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any appropriate information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registrationtherewith.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 3 contracts
Samples: Purchase Agreement (Sphere 3D Corp), Purchase Agreement (Sphere 3D Corp), Purchase Agreement (Sphere 3D Corp)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company Corporation as follows, and acknowledges that the Corporation is relying upon such covenants, representations and warranties in connection with the sale of the Convertible Notes to the Investor:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY(a) The Investor is not a “U.S. Person” as defined by Regulation S of the Securities Act, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDas set forth in Schedule D hereto.
b. (b) The Investor is not acquiring the Securities for the account or benefit of a U.S. Person.
(ic) The Investor was not in the United States at the time the offer to purchase the Securities was received or at the time this Agreement was executed.
(d) The Investor has no need for liquidity such knowledge, sophistication and experience in business and financial matters such that it is capable of evaluating the merits and risks of the investment in the Shares, (ii) is able to bear Securities. The Investor has evaluated the substantial economic merits and risks of an investment in the Shares for an indefinite periodSecurities. The Investor can bear the economic risk of this investment, and (iii) at the present time, could is able to afford the a complete loss of such investment this investment.
(e) The Investor acknowledges that the Corporation is in the Sharesearly stages of development of its business and the Corporation’s success is subject to a number of significant risks, including the risk that the Corporation will not be able to finance its plan of operations and that the Corporation’s business plan will not succeed. The Investor acknowledges that any forward-looking information provided by the Corporation to the Investor are subject to risks and uncertainties and that the Corporation’s actual results may differ materially from the results anticipated.
c. (f) The address set forth at Securities will be acquired by the end of this Agreement is Investor for investment for the Investor's true and correct residenceown account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Investor has no present intention of changing such residence to selling, granting any other state participation in, or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to otherwise distributing the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictionssame. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares does not have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating with any person to sell, transfer or grant participations to such person or to any resale or other distribution third person, with respect to any of the SharesSecurities.
h. (g) The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole has had full opportunity to ask questions and absolute discretion receive answers from representatives of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with Corporation regarding the terms and conditions of the RuleOffering and the business, properties, prospects and financial condition of the Corporation, each as is necessary to evaluate the merits and risks of investing in the Securities. The Investor believes it has received all the information it considers necessary or appropriate for deciding whether to purchase the Securities. The Investor has had full opportunity to discuss this information with the Investor’s legal and financial advisers prior to execution of this Agreement.
(h) The Investor acknowledges that the Securities will be offered and sold without registration under the Securities Act in a private placement that is exempt from the registration provisions of the Securities Act based on the truth and accuracy of the representations of the Investor. The Investor acknowledges that the Corporation will rely on these representations in completing the issuance of the Securities to the Investor. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands acknowledges that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale offering of the Shares without registrationSecurities by the Corporation has not been reviewed by the SEC or any state securities regulatory authority.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment This Agreement has been duly authorized, validly executed and involve a high degree of risk of loss delivered by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Infrablue (Us) Inc.), Securities Purchase Agreement (Mobilemail (Us) Inc.)
Representations and Warranties of the Investor. 1. The offer and sale of the Shares and Warrant is intended to be exempt from registration under Section 4(2) of the Securities Act of 1933, as amended, (the "Act") and/or Regulation D promulgated under the Act. In order to induce the Company to accept this Agreementfurtherance thereof, the Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY(a) The Shares and Warrant are being purchased for the account of the Investor for investment purposes only and not for the account of any other person, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYand not with a view to distribution, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDassignment or resale to others or to fractionalization in whole or in part.
b. (b) No other person has or will have a direct or indirect beneficial interest in the Shares or Warrant and the Investor will not sell, hypothecate or otherwise transfer the Shares or Warrant except in accordance with the registration provisions of the Act and applicable state securities laws, unless an opinion of counsel acceptable to the Company and its counsel is provided which states that an exemption from the registration requirements of the Act and applicable state securities laws is available.
(c) In evaluating the suitability of an investment in the Company, the Investor has not relied upon any representations or other information (whether oral or written) from the Company or any of its agents other than as set forth in the Company's Periodic Reports, in this Subscription Agreement, in the Warrant and in documents provided pursuant to Section C.1.(d) of this Subscription Agreement. No oral or written representations have been made, or oral or written information furnished to, the Investor or its advisors, if any, in connection with the offering of the Shares which were in any way inconsistent with the Periodic Reports.
(d) The Company has made available to the Investor all documents and information that the Investor has requested relating to an investment in the Company.
(e) The Investor recognizes that an investment in the Company involves substantial risks and represents that the Investor has taken full cognizance of and understands all of the risks related to the purchase of the Shares and Warrant. The Investor can bear the economic risk of losing the entire investment in the Shares and Warrant.
(f) The Investor has carefully considered and has, to the extent he, she or it believes such discussion to be necessary, discussed with his, her or its professional legal, tax and financial advisers the suitability of an investment in the Company, and the Investor has determined that the Shares and Warrant are a suitable investment for the Investor.
(g) The statements and information set forth in the Entities Investor Qualification Questionnaire (the "Questionnaire") and attached to this Subscription Agreement as Exhibit A, are true, accurate and complete. All information which the Investor has provided to the Company concerning the Investor and the Investor's financial position is correct and complete as of the date set forth below, and if there should be any change in such information prior to the Company's acceptance of the Investor's subscription for the Shares and Warrant, the Investor will immediately provide such information to the Company and will promptly send confirmation of such information to the Company.
(h) The Investor's overall commitment to investments which are not readily marketable is not disproportionate to the Investor's net worth, and the Investor's investment in the Shares and Warrant will not cause such overall commitment to become excessive.
(i) The Investor has adequate means of providing for its current needs and personal contingencies and has no need for liquidity in the investment in the Shares, (ii) is able to bear the substantial economic risks of an its investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the SharesWarrant.
c. The address set forth at the end of (j) If this Subscription Agreement is executed and delivered on behalf of an entity, the Investor's true person executing and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information delivering this Subscription Agreement has been made or furnished duly authorized and is duly qualified to (i) execute and deliver this Subscription Agreement and all other instruments executed and delivered on behalf of the Investor in connection with the purchase of the Shares and if so madeWarrant, and (ii) purchase and hold the Shares and Warrant. The signature of the person executing and delivering this Subscription Agreement is binding upon such entity and such entity has not been relied uponformed for the specific purpose of acquiring the Shares and Warrant.
e. 2. The foregoing representations and warranties are true and accurate as of the date of this Subscription Agreement, shall be true and accurate as of the date of the acceptance of this Subscription Agreement by the Company and shall survive thereafter. If such representations or warranties shall not be true and accurate in any respect, the Investor understands that the Shares have not been registered under the Securities Actwill, nor pursuant prior to such acceptance, give written notice of such fact to the provisions of Company specifying which representations and warranties are not true and accurate and the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictionsreasons therefor.
3. The Investor represents to shall indemnify and hold harmless the Company that he is an “accredited investor”and any of its respective officers, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933employees, as amended. The Investor is fully aware that the Shares to which he registered representatives, directors or she is subscribing control persons who were or are a party to, or are threatened to be sold in reliance upon such exemptions based upon his made a party to any threatened, pending or her representationscompleted action, warranties and agreements set forth in this Agreement. The Investor is fully aware that he suit or she must bear the economic risk of his proceeding, whether civil, criminal, administrative or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Actinvestigative, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be availableby reason of, or arising from any actual or alleged misrepresentation or misstatement of facts, or omission to supply the Investor with any information necessary to enable represent or state facts, made by the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, concerning the Investor or its financial position, in connection with the offering and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investorand Warrant, shall survive the Investor’s deathagainst losses, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected liabilities and expenses actually and reasonably incurred by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act or any of 1934its respective officers, as amendedemployees, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one registered representatives, directors or control persons (1including attorneys' fees, judgments, fines and amounts paid in settlement) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not availablesuch action, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares suit or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registrationproceeding.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 2 contracts
Samples: Subscription Agreement (Digital Fusion Inc/Nj/), Subscription Agreement (Madison Run, LLC)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the 3.1 Each Investor hereby severally represents and warrants to the Company as followsthat:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (a) it is an "accredited investor" within the meaning of Rule 501 of Regulation D under the Securities Act and either (i) has no need it was not organized for liquidity in the investment in specific purpose of acquiring the Shares, or (ii) each person who is able to bear an equity owner of the substantial economic risks Investor is an "accredited investor" within the meaning of an investment in Rule 501 of Regulation D under the Securities Act;
(b) it is the present intention that the Shares being purchased by such Investor are being acquired for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true own account for the purpose of investment and correct residence, and the Investor has no not with a present intention of changing such residence view to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor for sale in connection with the Shares and if so made, has not been relied upon.any distribution thereof;
e. The (c) such Investor understands that (i) the Shares have not been registered under the Securities Act, nor pursuant to Act by reason of their issuance in a transaction exempt from the provisions registration requirements of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents pursuant to the Company that he is an “accredited investor”, as such term is defined in Rule 501(aSection 4(2) of thereof or Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered promulgated under the Securities Act, and, therefore, cannot (ii) the Shares must be offered or sold held indefinitely unless they are subsequently a subsequent disposition thereof is registered under the Securities Act or an exemption is exempt from such registration is available. The registration, (iii) the Shares will bear a legend to such effect, and (iv) the Company will make a notation on its transfer books to such effect;
(d) such Investor further understands that no public market now exists for any of the securities issued by the Company and that the Company has made no intention and is under assurances that a public market will ever exist for the Company's securities;
(e) no obligation to register its Shares under person has or will have, as a result of the Securities Act transactions contemplated by this Agreement, any right, interest or to comply with the requirements valid claim against or upon such Investor for any exemption that might otherwise be availablecommission, fee or other compensation as a finder or broker because of any act or omission of such Investor or any agent for such Investor;
(f) such Investor has full corporate or other power and authority to enter into and to perform this Agreement and the Stockholders Agreement in accordance with their terms;
(g) the execution of, and performance of the transactions contemplated by, this Agreement and the Stockholders Agreement are not in conflict with or will not result in any material breach of any terms, conditions or provisions of, or constitute a default under, its corporate charter, limited partnership agreement, or other organizational document, as applicable;
(h) such Investor has been furnished any and all materials relating to supply the Investor with any information necessary to enable the Investor to make routine sales of Company and its activities, the Shares under Rule 144 under the Securities Act (or anything set forth in this Agreement which it understands is not nowhas reasonably requested;
(i) the Company and officers and directors have answered all inquiries that such Investor has put to them concerning the Company and its activities, and will not likely be, available) the Company or any rule of other matters relating to the Securities Company and Exchange Commission or any successor thereto.Shares;
f. The (j) such Investor understands that has sufficient knowledge and experience in evaluating and investing in companies similar to the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books Company in terms of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION's stage of development so as to be able to evaluate the risks and merits of its investment in the Company and it is able financially to bear the risks thereof. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Such Investor understands and acknowledges that this Subscription may be accepted or rejected in whole or in part an investment in the sole Company entails a high degree of risk and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales Investor will not loose all or a part of its investment in the Company. Without limiting the generality of the Shares under Rule 144 foregoing, such Investor acknowledges that the First Closing will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with occur prior to the terms and conditions submission of the Rule. The Investor further understands Proposal and that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will there can be required. The Investor understands no assurance that the Company is under will be able to submit the Proposal and, even if submitted, there can be no obligation assurance that ICANN will award the .XXX top-level domain registry to the undersigned Company, either of which would have a Material Adverse Effect on the Company. Further, such Investor represents that it is able to register financially bear any such loss; and
(k) such Investor has carefully reviewed the Shares Disclosure Memorandum attached as Exhibit B to this Agreement and understands the information set forth therein, including, without limitation, the disclosures under the heading "Risk Factors." Such Investor has not been furnished with any offering literature other than the Disclosure Memorandum and such Investor has relied only on the information contained therein. Furthermore, except as set forth in this Agreement, no representations or warranties have been made to the Investor or to comply the Investor's advisers, by the Company, or by its officers and directors, with respect to the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale business of the Shares without registration.
j. The Investor has been advised to consult with Company, the Investor’s own attorney regarding legalfinancial condition of the Company, and/or the economic, tax, or any other aspects or consequences of a purchase of the Shares, and the Investor has not relied upon any information concerning the Company or the Shares, written or oral, other than contained in this Agreement and the Disclosure Memorandum. In addition, such Investor has not relied on the Company's business plan, or the contents of any presentation made by the Company's officers and directors to such Investor concerning the Company, its industry, its proposed business and prospects and other matters concerning an investment in the Company and has done sorelated matters, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative business plan was delivered to or presentation was made to such Investor, in making an investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends decision with respect to the Shares;
(iv) ; it being acknowledged by the Investor that there has never been any representation, guarantee or warranty made the business plan and presentation were for informational purposes only and was not intended to be relied upon and was not relied upon by the Investor in making an investment decision with respect to the Shares. In addition, the Investor has been represented by any brokersuch legal and tax counsel and others selected by the Investor as the Investor has found necessary to consult concerning this transaction and to review and evaluate the tax, economic and other ramifications of an investment in the Company, its agents including whether the acquisition of the Shares will result in any adverse tax consequences to the Investor. The Investor acknowledges and agrees that except as expressly set forth in this Agreement, no representation or employees warranty of any kind has been made by the Company, or any other person, expressly with respect to any consequences relating to the business of or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of an investment in the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;.
Appears in 2 contracts
Samples: Securities Purchase Agreement, Securities Purchase Agreement
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants as follows to the Company as followsat the date of this Agreement and at each Closing Date and acknowledges and confirms that the Company is relying on such representations and warranties in connection with the offer, sale and issuance of the Securities to the Investor:
a. (a) THE INVESTOR HAS READ CAREFULLY KNOWLEDGE IN FINANCIAL AND UNDERSTANDS THIS AGREEMENT BUSINESS AFFAIRS, IS CAPABLE OF EVALUATING THE MERITS AND HAS CONSULTED RISKS OF AN INVESTMENT IN THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYSECURITIES, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING IS ABLE TO BEAR THE BUSINESS AND OPERATIONS ECONOMIC RISK OF SUCH INVESTMENT EVEN IF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDENTIRE INVESTMENT IS LOST;
(b) The Investor has not been provided with a prospectus, an offering memorandum or any other document in connection with its subscription for Securities and the decision to subscribe for Securities and execute this Agreement has not been based upon any verbal or written representation made by or on behalf of the Company or any employee or agent of the Company;
(c) The distribution of the Securities has not been made through, or as a result of, and is not being accompanied by, (i) a general solicitation, (ii) any advertisement including articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television , or (iii) any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(d) The Investor is eligible to purchase the Securities pursuant to an exemption from the prospectus requirements of Canadian Securities Laws. The Investor has completed and delivered to the Company the Canadian Investor Certificate annexed to this Schedule IV as Annex IV-1, evidencing the Investor's status and criteria for reliance on the relevant prospectus exemption under Canadian Securities Laws and: (i) confirms that it complies with the criteria for reliance on the prospectus exemption and the truth and accuracy of all statements made in such certificate as of the date of this Agreement and as of each Closing Date; (ii) understands that the Company is required to verify that the Investor satisfies the relevant criteria to qualify for the prospectus exemption; and (iii) may be required to provide additional information or documentation to evidence compliance with the prospectus exemption.
b. (e) The Investor is resident of a province of territory of Canada, and, where required, is purchasing the Securities as principal;
(f) The Investor has been independently advised as to and is aware of the resale restrictions under Canadian Securities Laws with respect to the Securities;
(g) The Investor has obtained such legal and tax advice as it considers appropriate in connection with the offer, sale and issuance of the Securities and the execution, delivery and performance by it of this Agreement and the transactions contemplated by the Transaction Documents. The Investor is not relying on the Company, its affiliates or its counsel in this regard;
(h) None of the funds that the Investor is using to purchase the Securities are to the knowledge of the Investor, proceeds obtained or derived, directly or indirectly, as a result of illegal activities;
(i) No Person has made any oral or written representations to the Investor: (i) that any Person will resell or repurchase; (ii) that any Person will refund the purchase price of the Securities; or (iii) as to the future value or price of any of the Securities;
(j) The funds representing the aggregate Purchase Price advanced by the Investor are not proceeds of crime as defined in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the "PCMLTFA"). To the Investor's knowledge none of the subscription funds to be provided by the Investor (i) has no need for liquidity in have been or will be derived from or related to any activity that is deemed criminal under the investment in the Shareslaws of Canada or any other applicable jurisdiction, or (ii) is able to bear the substantial economic risks are being tendered on behalf of an investment in the Shares for an indefinite period, and a person or entity (iiiA) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in with whom the Company reasonably requested by the Investor have would be prohibited from dealing with under applicable money laundering, terrorist financing, economic sanctions, criminal or other similar laws or regulations or (B) who has not been made available identified to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands acknowledges that the Shares have not been registered under Company may in the Securities Actfuture be required by law to disclose the Investor's name and other information relating to this Agreement and the Investor's subscription hereunder, nor on a confidential basis pursuant to the provisions of the securities laws PCMLTFA or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act or regulations and in the laws of such jurisdictions. The Investor represents to shall promptly notify the Company if the Investor discovers that he is an “accredited investor”, as such term is defined in Rule 501(a) any of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are foregoing representations ceases to be sold in reliance upon such exemptions based upon his or her representationstrue, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in to provide the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any appropriate information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registrationtherewith.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 2 contracts
Samples: Purchase Agreement (Sphere 3D Corp), Purchase Agreement (MacFarlane Family Ventures, LLC)
Representations and Warranties of the Investor. In order By subscribing to induce the Company to accept this AgreementOffering, the Investor (and, if the Investor is purchasing the Shares subscribed for hereby in a fiduciary capacity, the person or persons for whom the Investor is so purchasing) represents and warrants to the Company Company, which representations and warranties are true and complete in all material respects, as followsof the date of each Closing:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. (a) The Investor has all necessary power and authority under all applicable provisions of law to subscribe to the Offering, to execute and deliver this Agreement and to carry out the provisions thereof. All actions on the Investor’s part required for the lawful subscription to the Offering have been or will be effectively taken prior to the Closing. Upon subscribing to the Offering, this Agreement will be a valid and binding obligation of Investor, enforceable in accordance with its terms, except (i) has no need for liquidity as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights and (ii) as limited by general principles of equity that restrict the availability of equitable remedies.
(b) The Investor acknowledges the public availability of the Company’s current Offering Circular, which can be viewed on the SEC Exxxx Database under the filed number 024-10856. This Offering Circular is made available in the Company’s most recent qualified offering statement on SEC Form 1-A, as amended, deemed qualified on October 28, 2019. In the Company’s Offering Circular, it makes clear the terms and conditions of the Offering and the risks associated therewith are described. The Investor has had an opportunity to discuss the Company’s business, management and financial affairs with directors, officers and management of the Company and has had the opportunity to review the Company’s operations and facilities. The Investor has also had the opportunity to ask questions of and receive answers from the Company and its management regarding the terms and conditions of this investment. The Investor acknowledges that except as set forth herein, no representations or warranties have been made to the Investor, or to Investor’s advisors or representative, by the Company or others with respect to the business or prospects of the Company or its financial condition.
(c) The Investor has sufficient experience in financial and business matters to be capable of utilizing such information to evaluate the merits and risks of the Investor’s investment in the Shares, (ii) is able and to bear make an informed decision relating thereto. Alternatively, the substantial economic Investor has utilized the services of a purchaser representative and together they have sufficient experience in financial and business matters that they are capable of utilizing such information to evaluate the merits and risks of the Investor’s investment in the Shares, and to make an informed decision relating thereto. The Investor has evaluated the risks of an investment in the Shares for an indefinite periodShares, and (iii) at the present time, could afford the complete loss of such investment including those described in the Shares.
c. The address set forth at section of the end of this Agreement is the Investor's true Offering Circular entitled “Risk Factors,” and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms determined that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to is suitable for the Investor. The undersigned Investor has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to adequate financial resources for an investment of this character. The Investor could bear a complete loss of the Investor Investor’s investment in connection with the Shares and if so made, has not been relied uponCompany.
e. (d) The Investor understands that the Shares have are not been being registered under the Securities Act, nor pursuant to on the provisions ground that the issuance thereof is exempt under Regulation A of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(aSection 3(b) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, andand that reliance on such exemption is predicated in part on the truth and accuracy of the Investor’s representations and warranties, therefore, cannot be offered or sold unless they are subsequently registered under and those of the Securities Act or an exemption from such registration is availableother purchasers of the Shares in the Offering. The Investor further understands that the Shares are not being registered under the securities laws of any states on the basis that the issuance thereof is exempt as an offer and sale not involving a registrable public offering in such state, since the Shares are “covered securities” under the National Securities Market Improvement Act of 1996. The Investor covenants not to sell, transfer or otherwise dispose of any Shares unless such Shares have been registered under the Securities Act and under applicable state securities laws, or exemptions from such registration requirements are available.
(e) The Investor acknowledges and agrees that there is no ready public market for the Shares and that there is no guarantee that a market for their resale will ever exist. The Company has no intention and is under no obligation to register its list any of the Shares on any market or take any steps (including registration under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, ) with respect to facilitating trading or resale of the provisions Shares. The Investor must bear the economic risk of this investment indefinitely and Investor acknowledges that the Investor is able to bear the economic risk of losing the Investor’s entire investment in the Shares.
(f) The Investor represents that either: (i) the Investor is an “accredited investor” within the meaning of Rule 144 promulgated 501 of Regulation D under the Securities Act permitting resales Act; or (ii) the Purchase Price, together with any other amounts previously used to purchase Shares in the Offering, does not exceed ten percent (10%) of the greater of the Investor’s annual income or net worth (or in the case where the Investor is a non-natural person, their revenue or net assets for such Investor’s most recently completed fiscal year end). The Investor represents that to the extent it has any questions with respect to its status as an accredited investor, or the application of the investment limits, it has sought professional advice.
(g) Within five (5) days after receipt of a request from the Company, the Investor hereby agrees to provide such information with respect to its status as a stockholder (or potential stockholder) and to execute and deliver such documents as may reasonably be necessary to comply with any and all laws and regulations to which the Company is or may become subject, including, without limitation, the need to determine the accredited investor status of the Company’s stockholders. The Investor further agrees that in the event it transfers any Shares, it will require the transferee of such Shares to agree to provide such information to the Company as a condition of such transfer.
(h) The Investor acknowledges that the Per Share Purchase Price of the Shares to be sold in the Offering was set by the Company on the basis of the Company’s internal valuation and no warranties are made as to value. The Investor further acknowledges that future offerings of securities of the Company may be made at lower valuations, with the result that the Investor’s investment will bear a lower valuation.
(i) The Investor maintains the Investor’s domicile (and is not a transient or temporary resident) at the address provided with the Investor’s subscription.
(j) If the Investor is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended), the Investor hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Shares or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the 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 Shares. The Investor’s subscription and payment for and continued beneficial ownership of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales violate any applicable securities or other laws of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with Investor’s jurisdiction.
(k) If the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register purchasing the Shares in a fiduciary capacity for another person or to comply with the conditions of Rule 144 entity, including without limitation a corporation, partnership, trust or take any other action necessary in order to make available any exemption for entity, the sale of the Shares without registration.
j. The Investor has been advised duly authorized and empowered to consult with execute this Agreement and all other subscription documents. Upon request of the Company, the Investor will provide true, complete and current copies of all relevant documents creating the Investor’s own attorney regarding legal, tax, and other matters concerning an authorizing its investment in the Company and has done so, to and/or evidencing the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware satisfaction of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;foregoing.
Appears in 2 contracts
Samples: Subscription Agreement (Discount Print Usa, Inc.), Subscription Agreement (Discount Print Usa, Inc.)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as followsof the date hereof that:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (i) It is an entity duly organized, validly existing and in good standing under the laws of the state of its organization.
(ii) It is acquiring the Series A Shares to be acquired by it and any Common Stock issuable upon conversion thereof, and the Note, solely for its account for investment and not with a present view to or for sale or distribution of the Series A Shares and any such Common Stock or the Note. The entire legal and beneficial interests of the Series A Shares and any such Common Stock, along with the Note, is being acquired for, and will be held for, its account only. It does not presently have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third person with respect to any of the Series A Shares or the Note.
(iii) It (A) has no need for liquidity such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the SharesSeries A Shares and the Note, and (iiB) is able to bear the substantial economic risks complete loss of an its investment in the Series A Shares for and the Note. It has had an indefinite periodopportunity to discuss the Company’s business, management, financial affairs and the terms and conditions of the offering of the Series A Shares with the Company's management. Nothing contained in this subparagraph (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to nor any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested due diligence investigation by the Investor have been of the Company or its Subsidiaries shall limit or modify the representations and warranties of the Company or any of its Subsidiaries made available to in this Agreement or in any other Transaction Document or the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to right of the Investor in connection with the Shares and if so made, has not been relied uponto rely on any thereof.
e. The Investor (iv) It understands that the Series A Shares have and the Note are not, and, at the time of issuance, any Common Stock acquired on conversion of the Series A Shares may not been be, registered under the Securities Act, nor pursuant to Act or any state securities laws by reason of a specific exemption from the registration provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the state securities laws of such jurisdictions. The Investor represents to and the Company that he is an “accredited investor”, relying on the accuracy of the Investor’s representations as expressed herein to determine its eligibility for such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amendedexemption. The Investor is fully aware It understands that the Series A Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, Note and, thereforeat the time of issuance, cannot any such Common Stock may be offered or sold "restricted securities" under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Investor must hold the Series A Shares and the Note, and any such Common Stock, indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that It acknowledges that, except as provided in the Registration Rights Agreement, the Company has no intention and is under no obligation to register its Shares file a registration statement under the Securities Act with respect to the Series A Shares, the Note or any such shares of Common Stock.
(v) It is an “accredited investor” as defined in Regulation D promulgated the Securities Act.
(vi) It understands and agrees that all certificates evidencing the Series A Shares and, unless registered at the time of issuance, the shares of Common Stock acquired upon the conversion thereof to comply with the requirements for any exemption that might otherwise be available, or issued to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will may bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Companylegend: “THE SHARES OF STOCK SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED TRANSFERRED OR ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES THE SECURITIES UNDER THE SAID ACT, OR PURSUANT TO AN OPINION EXEMPTION FROM REGISTRATION UNDER SAID ACT.” “THE SALE, TRANSFER, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A CERTAIN REGISTRATION RIGHTS AGREEMENT DATED AS OF __________, 2010, AS AMENDED FROM TIME TO TIME, AMONG THE COMPANY AND CERTAIN HOLDERS OF ITS OUTSTANDING SECURITIES. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIREDSECRETARY OF THE COMPANY.”
g. The Shares are being acquired solely for the Investor's own account, for investment (vii) It understands and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except agrees that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary Note issued to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that bear the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representationfollowing legend: “THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, guarantee or warranty made to the Investor by any brokerAS AMENDED, the CompanyOR APPLICABLE STATE SECURITIES LAWS. THIS PROMISSORY NOTE MAY NOT BE SOLD, its agents or employees or any other personTRANSFERRED OR ASSIGNED, expressly or by implicationPLEDGED, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the CompanyHYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SAID ACT.”
Appears in 2 contracts
Samples: Investment Agreement (Desert Hawk Gold Corp.), Investment Agreement (Desert Hawk Gold Corp.)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the Each Investor hereby represents and warrants to the Company severally and solely with respect to itself and its purchase hereunder and not with respect to any other Investor as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY(a) It is acquiring the Shares for its own account for investment and not with a view towards the resale, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYtransfer or distribution thereof, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFnor with any present intention of distributing the Shares, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYbut subject, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDnevertheless, to any requirement of law that the disposition of the Investor's property shall at all times be within the Investor's control, and without prejudice to the Investor's right at all times to sell or otherwise dispose of all or any part of such securities under a registration under the Securities Act or under an exemption from said registration available under the Securities Act.
b. The (b) It has full power and legal right to execute and deliver this Agreement and to perform its obligations hereunder.
(c) It is a resident of the jurisdiction set forth immediately below such Investor's name on the signature pages hereto.
(d) It has taken all action necessary for the authorization, execution, delivery, and performance of this Agreement and its obligations hereunder, and, upon execution and delivery by the Company, this Agreement shall constitute the valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms, except that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and general principles of equity.
(ie) There are no claims for brokerage commissions or finder's fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement made by or on behalf of the Investor and the Investor agrees to indemnify and hold the Company harmless against any costs or damages incurred as a result of any such claim.
(f) It has no need for liquidity such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the SharesCompany as contemplated by this Agreement, (ii) and is able to bear the substantial economic risks risk of an such investment in the Shares for an indefinite period, period of time. It has been furnished access to such information and (iii) at documents as it has requested and has been afforded an opportunity to ask questions of and receive answers from representatives of the present time, could afford Company concerning the complete loss of such investment in the Shares.
c. The address set forth at the end terms and conditions of this Agreement is the Investor's true and correct residence, and the Investor has no present intention purchase of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictionscontemplated hereby. The Investor represents to the Company that he It is an “"accredited investor”, as such term is defined in " within the meaning of Rule 501(a) 501 of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands (g) It hereby acknowledges that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor no action has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of been taken by the Company, and this Agreementthe Company does not intend to take any action, unless properly revoked before the completion in any jurisdiction outside of the sale United States that would permit an offering of the Shares to the InvestorShares, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act possession or distribution of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that offering materials in connection with sales the issuance of securities for which Rule 144 is not availablethe Shares, compliance with some other exemption from registration will be required. The Investor in any jurisdiction outside of the United States.
(h) It understands that the Company is under no obligation to the undersigned to register the Shares United States federal or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees state agency or any other person, expressly government or by implication, as to:
(A) the approximate governmental agency has passed upon or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance made any recommendation or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership endorsement of the Shares or any such other securities, or of the overall business of the Company;an investment therein.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Micro Therapeutics Inc), Securities Purchase Agreement (Micro Investment LLC)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents ---------------------------------------------- and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. (a) The Investor (i) has no need Shares are being purchased for liquidity in the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true own account and correct residencenot with the view to, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor for resale in connection with the Shares and if so madewith, has not been relied upon.
e. The any distribution or public offering thereof. Each Investor understands that neither the Shares nor the Conversion Securities have not been registered under the Securities Act, nor pursuant to the provisions of the Act or any state securities laws or other laws by reason of any other applicable jurisdictions, their contemplated issuance in reliance on exemptions for private offerings contained in transactions exempt from the registration requirements of the Securities Act and applicable state securities laws and that the reliance of the Company and others upon these exemptions is predicated in part upon this representation by the laws of such jurisdictionsInvestor. The Investor represents further understands that its shares of Series A Preferred and the Conversion Securities may not be transferred or resold without registration under the Securities Act and any applicable state securities laws, or pursuant to an exemption from the Company that he requirements of the Securities Act and applicable state securities laws.
(b) The Investor's principal place of business is located at the address set forth on Schedule A. The Investor qualifies as an “"accredited ---------- investor”, ," as such term is defined in Rule 501(a) 501 of Regulation D under the Securities Act of 1933, as amendedAct. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands acknowledges that the Company has no intention made available to such Investor at a reasonable time prior to the execution of this Agreement the opportunity to ask questions and is under no obligation to register its Shares under receive answers concerning the Securities Act or to comply with the requirements for any exemption that might otherwise be availablebusiness, or to supply the Investor with any information necessary to enable the Investor to make routine sales operations and financial condition of the Shares under Rule 144 under the Securities Act (which it understands is not now, Company and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rulesale of securities contemplated by this Agreement and to obtain any additional information requested by such Investor. The Investor further understands that in connection with sales is able to bear the loss of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's its entire investment in the Company;Shares and the Conversion Securities and has such knowledge and experience of financial and business matters that he is capable of evaluating the merits and risks of the investment to be made pursuant to this Agreement. However, neither the foregoing nor any other due diligence investigation conducted by such Investor or on its behalf shall limit, modify or affect the representations and warranties of the Company set forth in Section 4 of this Agreement or the right of such Investor to rely thereon.
(iic) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company This Agreement has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor duly authorized by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience all necessary action on the part of the officers or directors Investor, has been duly executed and delivered by such Investor and is a valid and binding agreement of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;Investor.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Optical Sensors Inc), Securities Purchase Agreement (Optical Sensors Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants as of the date hereof to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY(a) The Investor is duly organized, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTORvalidly existing and in good standing under the laws of its state of formation, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within such Investor’s limited liability company powers and have been duly authorized by all necessary actions on the part of the Investor. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYThis Agreement has been duly executed and delivered by the Investor, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFand, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYassuming due authorization, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDexecution and delivery by the other parties hereto, this Agreement constitutes a legally valid and binding obligation of the Investor, enforceable against the Investor in accordance with the terms hereof (except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies).
b. (b) The execution and delivery of this Agreement by the Investor does not, and the performance by the Investor of its obligations hereunder will not, (i) has no need for liquidity conflict with or result in a violation of the investment in organizational documents of the Shares, Investor or (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to require any other state consent or jurisdiction.
d. The Investor confirms approval that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands given or other action that the Shares have has not been registered under the Securities Acttaken by any person, nor pursuant in each case to the provisions of the securities laws extent such consent, approval or other laws action would prevent, enjoin or materially delay the performance by such Investor of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictionsits obligations under this Agreement. The Investor represents has full right and power to the Company that he enter into this Agreement.
(c) The Investor is an “accredited investor”, ” as such term is defined in Rule 501(a501(a)(3) of Regulation D under the Securities Act, and no such person or any of their affiliates have experienced a disqualifying event as enumerated pursuant to Rule 506(d) of Regulation D under the Securities Act. The Investor is not a resident of Canada.
(d) The Investor understands that any shares of Common Stock that may be issued to the Investor in the PIPE Financing will be offered in a transaction not involving any public offering within the meaning of the Securities Act of 1933, as amendedamended (the “Securities Act”) and under a prospectus exemption under applicable Canadian securities laws. The Investor is fully aware understands that the Shares to which he such Common Stock may not be offered, resold, transferred, pledged or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for otherwise disposed absent an indefinite period of time because the Shares have not been registered effective registration statement under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or except pursuant to an applicable exemption from such the registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933Act, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions any applicable securities laws of the Ruleapplicable states and other jurisdictions of the United States, and that any certificates or book entry records representing the Common Stock issued to the Investor in the PIPE Financing shall contain a restrictive legend to such effect.
(e) In making its decision to execute this Agreement and invest in the PIPE Financing (subject to and conditional on the consummation of the Business Combination), the Investor has relied solely upon independent investigation made by the Investor and the Company’s representations, warranties and covenants contained herein. The Investor further understands that in connection with sales of securities for which Rule 144 is has not availablerelied on any other statements or other information provided by anyone other than the Company concerning the Company, compliance with some other exemption from registration will be requiredTarget, the Business Combination or the PIPE Financing. The Investor understands acknowledges and agrees that the Company is under no obligation it has received and has had an adequate opportunity to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any review such financial and other action information as it deems necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends decision with respect to the Shares;
(iv) that there commitment made pursuant to this Agreement and has never been any representation, guarantee or warranty made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the its commitment hereunder. The Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time represents and agrees that the Investor will be required and its professional advisor(s), if any, have had the full opportunity to remain ask such questions, receive such answers and obtain such information as owner the Investor has deemed necessary to make an investment decision with respect to the commitment made pursuant to this Agreement. Without limiting the generality of the Shares; orforegoing, the Investor acknowledges that it has reviewed the Company’s filings with the Securities and Exchange Commission.
(Bf) the past performance No broker or experience on the part of the officers finder is entitled to any brokerage or directors of the Company, finder’s fee or of any other person, that will commission solely in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;connection with this Agreement.
Appears in 2 contracts
Samples: Backstop Agreement (GameSquare Holdings, Inc.), Backstop Agreement (FaZe Holdings Inc.)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (i) has no need for liquidity in the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "“reporting company" ” under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
(v) that the Company may in the future issue additional shares of capital stock in the Company, and that the Investor's interest in the Company may thereby become diluted. The Investor acknowledges that he or she understands the meaning and legal consequences of the representations, warranties and acknowledgments contained in this Agreement. The Investor confirms that such representations, warranties and acknowledgments are true and accurate as of the date of this Agreement and shall be true and accurate as of the date of delivery of the Funds to the Company and shall survive such delivery. If in any respect such representations and warranties shall not be true and accurate prior to acceptance of this Agreement pursuant to Section 2 of this Agreement, the Investor shall give written notice of such fact to the Company, specifying which representations and warranties are not true and accurate and the reasons therefor.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (Eurosite Power Inc), Common Stock Purchase Agreement (American Dg Energy Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants as of the date hereof to the Company Sponsor and SPAC as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY(a) The Investor is duly organized, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTORvalidly existing and in good standing under the laws of the jurisdiction of its formation or incorporation, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the Investor’s powers and have been duly authorized by all necessary actions on the part of the Investor. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYThis Agreement has been duly executed and delivered by the Investor and, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFassuming due authorization, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYexecution and delivery by the Sponsor and SPAC, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDthis Agreement constitutes a legally valid and binding obligation of the Investor, enforceable against the Investor in accordance with the terms hereof (except as enforceability may be limited by the Enforceability Exceptions).
b. (b) The execution and delivery of this Agreement by the Investor does not, and the performance by the Investor of its obligations hereunder will not, (i) has no need for liquidity conflict with or result in a violation of the investment in organizational documents of the Shares, Investor or (ii) is able to bear the substantial economic risks of an investment require any consent nor approval that has not been given or other action that has not been taken by any person, in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining each case to the investment in extent such consent, approval or other action would prevent, enjoin or materially delay the Company reasonably requested performance by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied uponof its obligations under this Agreement.
e. (c) The Investor is an “accredited investor” as defined in Rule 501(a)(3) of Regulation D under the Securities Act.
(d) The Investor understands that any New Investor Shares that may be issued to the Investor pursuant to this Agreement are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the New Investor Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is New Investor Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under no obligation the Securities Act, except pursuant to an applicable exemption from the undersigned registration requirements of the Securities Act, and in accordance with any applicable securities laws of the applicable states and other jurisdictions of the United States, and that any certificates or book entry records representing the New Investor Shares shall contain a restrictive legend to register such effect. The Investor acknowledges and agrees that the New Investor Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions, the Investor may not be able to readily resell the New Investor Shares and may be required to bear the financial risk of an investment in the New Investor Shares for an indefinite period of time. The Investor understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the New Investor Shares.
(e) In making its decision to invest in the New Investor Shares, the Investor has relied solely upon independent investigation made by the Investor and the Sponsor’s and SPAC’s representations, warranties and covenants contained herein. The Investor has not relied on any statements or other information provided by anyone other than the Sponsor or SPAC concerning SPAC, the Target, the Merger, the New Investor Shares or to comply with the conditions offer of Rule 144 or take any other action the New Investor Shares. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make available any exemption for an investment decision with respect to the sale New Investor Shares, including with respect to the Target, SPAC and the Merger, and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Investor’s investment in the New Investor Shares. The Investor represents and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the New Investor Shares. Without limiting the generality of the Shares without registrationforegoing, the Investor acknowledges that it has had an opportunity to review the SEC Reports.
j. (f) Investor became aware of the offering of the New Investor Shares solely by means of direct contact between the Investor, SPAC and the Sponsor or their representatives or affiliates. The Investor did not become aware of the offering of the New Investor Shares, nor were the New Investor Shares offered to the Investor, by any other means. The Investor acknowledges that New Investor Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under the Securities Act or any state securities laws.
(g) Investor acknowledges that it is aware that there are substantial risks incident to the ownership of the New Investor Shares. The Investor has been advised such knowledge and experience in financial and business matters as to consult with be capable of evaluating the Investor’s own attorney regarding legal, tax, merits and other matters concerning risks of an investment in the Company New Investor Shares, and the Investor has had an opportunity to seek, and has done sosought, such accounting, legal, business and tax advice as the Investor has considered necessary to make an informed investment decision. The Investor is not relying on any statements or representations of the extent Sponsor, SPAC or any of their agents for legal, tax or investment advice with respect to this Agreement or the undersigned considers necessarytransactions contemplated by the Agreement.
k. (h) The Investor has fully considered the risks of an investment in the New Investor Shares and determined that the New Investor Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in the New Investor Shares. The Investor acknowledges and is aware specifically that a possibility of the following:total loss exists.
(i) The Investor understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the New Investor Shares are a speculative investment and involve a high degree or made any findings or determination as to the fairness of risk this investment.
(j) No broker or finder has acted on behalf of loss by the Investor in such a way as to create any liability on the Sponsor or SPAC in connect on with this Agreement.
(k) The Investor is not entering into the transactions contemplated by this Agreement to create actual or apparent trading activity in the Class A Common Stock (or any security convertible into or exchangeable for Class A Common Stock) or to raise or depress or otherwise manipulate the price of the Investor's entire investment Class A Common Stock (or any security convertible into or exchangeable for the Class A Common Stock) or otherwise in violation of the Company;
(ii) that there is no guarantee Exchange Act. The Investor has not entered into or altered, and agrees that the Investor will realize not enter into or alter, any gain from his corresponding or her investment in the Company and that the Investor may lose his hedging transaction or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends position with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;Class A Common Stock.
Appears in 2 contracts
Samples: Share Reallocation Agreement (Cero Therapeutics Holdings, Inc.), Share Reallocation Agreement (Cero Therapeutics Holdings, Inc.)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants as follows to the Company as followsat the date of this Agreement and at the Closing Date and acknowledges and confirms that the Company is relying on such representations and warranties in connection with the offer, sale and issuance of the Securities to the Investor:
a. (a) THE INVESTOR HAS READ CAREFULLY KNOWLEDGE IN FINANCIAL AND UNDERSTANDS THIS AGREEMENT BUSINESS AFFAIRS, IS CAPABLE OF EVALUATING THE MERITS AND HAS CONSULTED RISKS OF AN INVESTMENT IN THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYSECURITIES, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING IS ABLE TO BEAR THE BUSINESS AND OPERATIONS ECONOMIC RISK OF SUCH INVESTMENT EVEN IF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDENTIRE INVESTMENT IS LOST;
(b) The Investor has not been provided with a prospectus, an offering memorandum (other than the Canadian Offering Memorandum incorporating the Prospectus and the Prospectus Supplement (in each case, in final form) and remitted to the Investor) or any other document in connection with its subscription for Securities and the decision to subscribe for Securities and execute this Agreement has not been based upon any verbal or written representation made by or on behalf of the Company or any employee or agent of the Company;
(c) The distribution of the Securities has not been made through, or as a result of, and is not being accompanied by, (i) a general solicitation, (ii) any advertisement including articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television , or (iii) any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(d) The Investor is eligible to purchase the Securities pursuant to an exemption from the prospectus requirements of Canadian Securities Laws. The Investor has completed and delivered to the Company the Canadian Investor Certificate annexed to this Schedule IV as Annex IV-1, evidencing the Investor's status and criteria for reliance on the relevant prospectus exemption under Canadian Securities Laws and: (i) confirms that it complies with the criteria for reliance on the prospectus exemption and the truth and accuracy of all statements made in such certificate as of the date of this Agreement and as of the Closing Date; (ii) understands that the Company is required to verify that the Investor satisfies the relevant criteria to qualify for the prospectus exemption; and (iii) may be required to provide additional information or documentation to evidence compliance with the prospectus exemption.
b. (e) The Investor is resident in the province of Alberta, British Columbia, Ontario or Québec, and, where required, is purchasing the Securities as principal;
(f) The Investor has been independently advised as to and is aware of the resale restrictions under Canadian Securities Laws with respect to the Securities;
(g) The Investor has obtained such legal and tax advice as it considers appropriate in connection with the offer, sale and issuance of the Securities and the execution, delivery and performance by it of this Agreement and the transactions contemplated by the Transaction Documents. The Investor is not relying on the Company, its affiliates or its counsel in this regard;
(h) None of the funds that the Investor is using to purchase the Securities are to the knowledge of the Investor, proceeds obtained or derived, directly or indirectly, as a result of illegal activities;
(i) No Person has made any oral or written representations to the Investor: (i) that any Person will resell or repurchase; (ii) that any Person will refund the purchase price of the Securities; or (iii) as to the future value or price of any of the Securities;
(j) The funds representing the aggregate Purchase Price advanced by the Investor are not proceeds of crime as defined in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the “PCMLTFA”). To the Investor's knowledge none of the subscription funds to be provided by the Investor (i) has no need for liquidity in have been or will be derived from or related to any activity that is deemed criminal under the investment in the Shareslaws of Canada or any other applicable jurisdiction, or (ii) is able to bear the substantial economic risks are being tendered on behalf of an investment in the Shares for an indefinite period, and a person or entity (iiiA) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in with whom the Company reasonably requested by the Investor have would be prohibited from dealing with under applicable money laundering, terrorist financing, economic sanctions, criminal or other similar laws or regulations or (B) who has not been made available identified to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands acknowledges that the Shares have not been registered under Company may in the Securities Actfuture be required by law to disclose the Investor's name and other information relating to this Agreement and the Investor's subscription hereunder, nor on a confidential basis pursuant to the provisions of the securities laws PCMLTFA or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act or regulations and in the laws of such jurisdictions. The Investor represents to shall promptly notify the Company if the Investor discovers that he is an “accredited investor”, as such term is defined in Rule 501(a) any of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are foregoing representations ceases to be sold in reliance upon such exemptions based upon his or her representationstrue, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in to provide the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any appropriate information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registrationtherewith.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 2 contracts
Samples: Subscription Agreement (Sphere 3D Corp), Subscription Agreement (Sphere 3D Corp)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as followsof the date hereof and as of each Closing Date that:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (a) it is an "accredited investor" within the meaning of Rule 501 of Regulation D under the Securities Act and either (i) has no need it was not organized for liquidity in the investment in specific purpose of acquiring the SharesPreferred Shares and Warrants, or (ii) each Person who has invested in the Investor is an "accredited investor" within the meaning of Rule 501 of Regulation D under the Securities Act;
(b) it has sufficient knowledge and experience in investing in companies similar to the Company in terms of the Company's stage of development so as to be able to bear evaluate the substantial economic risks and merits of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the its investment in the Company reasonably requested and it is able financially to bear the risks thereof;
(c) it is the present intention that the Preferred Shares and Warrants being purchased by the Investor have been made available (and the underlying Conversion Shares and Warrant Shares) are being acquired for its own account for the purpose of investment and not with a present view to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor for sale in connection with the Shares and if so made, has not been relied upon.any distribution thereof;
e. The Investor (d) it understands that (i) the Preferred Shares, the Conversion Shares, the Warrants and the Warrant Shares have not been registered under the Securities Act, nor pursuant to Act by reason of their issuance in a transaction exempt from the provisions registration requirements of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents pursuant to the Company that he is an “accredited investor”, as such term is defined in Section 4(2) thereof or Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he 505 or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered 506 promulgated under the Securities Act, (ii) the Preferred Shares and, thereforeupon conversion thereof, cannot the Conversion Shares, and the Warrants and, upon exercise thereof, the Warrant Shares, must be offered or sold held indefinitely unless they are subsequently a subsequent disposition thereof is registered under the Securities Act or an exemption is exempt from such registration is available. The Investor further understands that registration, (iii) the Company has no intention Preferred Shares, the Conversion Shares, the Warrants and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Warrant Shares will bear a legend to such effect, and (iv) the following legend restricting Company will cause its transfer and that agent to make a notation restricting such transfer will be made on the stock its transfer books to such effect;
(e) no Person, except the Investor, has or will have, as a result of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933transactions contemplated by this Agreement, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLDany right, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACTinterest or valid claim against or upon the Investor for any commission, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale fee or other distribution compensation as a finder or broker because of any act or omission of the Shares; Investor or any agent for such Investor;
(f) it has full corporate or other power and the Investor has no present plans authority to enter into and to perform this Agreement in accordance with its terms;
(g) the execution of, and performance of the transactions contemplated by this Agreement is not in conflict with and will not, with or without notice and/or the passage of time, result in any contractmaterial breach of any terms, undertakingconditions or provisions of, agreement or arrangement relating to constitute a material default under, its corporate charter or any resale indenture, lease, agreement, order, judgment or other distribution instrument to which such Investor is a party or otherwise subject;
(h) it has had the opportunity to review the Exchange Act Reports, ask questions of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion management of the Company, and this Agreement, unless properly revoked before the completion has had access to each of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, 's and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, ICN's books and records; and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that it has had the Shares are a speculative investment opportunity to consult with and involve a high degree of risk of loss by discuss the Investor transactions contemplated herein with its own legal and tax counsel, including but not limited to the allocation of the Investor's entire investment in purchase price between the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company Preferred Shares and that the Investor may lose his or her entire investment;
(iii) Warrants, and acknowledges that the Company has no current plan not provided any legal or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made tax advice to the Investor by in connection with any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;foregoing.
Appears in 2 contracts
Samples: Series a Convertible Preferred Stock and Common Stock Purchase Warrant Purchase Agreement (Stanford Venture Capital Holdings Inc), Series a Convertible Preferred Stock and Common Stock Purchase Warrant Purchase Agreement (Intercallnet Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, 3.1. Investment Intent Each of the Investor hereby severally and not jointly represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEYthat it: (a) is acquiring the stock to be acquired by it hereunder for its own account and not with a view to, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYor for sale in connection with, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFany resale, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYtransfer or distribution thereof, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor nor with any present intention of distributing such stock, but subject, nevertheless, to any requirement of law that the disposition of the Investor's property shall at all times be within the Investor' control, and without prejudice to the Investor's right at all times to sell or otherwise dispose of all or any part of such securities under a registration under the Securities Act or under an exemption from said registration available under the Securities Act; (ib) has no need full power and legal right to execute and deliver this Agreement and to perform its obligations hereunder; (c) has taken all action necessary for liquidity the authorization, execution, delivery, and performance of this Agreement and its obligations hereunder, and, upon execution and delivery by the Company, this Agreement shall constitute the valid and binding obligation of such Investor, enforceable against such Investor in accordance with its terms, except that such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and general principles of equity; (d) has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the SharesCompany as contemplated by this Agreement, (ii) and is able to bear the substantial economic risks risk of an such investment in the Shares for an indefinite period, period of time; (e) has been furnished access to such information and (iii) at documents as it has requested and has been afforded an opportunity to ask questions of and receive answers from representatives of the present time, could afford Company concerning the complete loss of such investment in the Shares.
c. The address set forth at the end terms and conditions of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions purchase of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act stock contemplated hereby; and in the laws of such jurisdictions. The Investor represents to the Company that he (f) is an “"accredited investor”, " as such term is defined in Rule Section 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered promulgated under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 2 contracts
Samples: Subscription Agreement (Icoa Inc), Subscription Agreement (Icoa Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY(a) It is acquiring the Shares for its own account for investment and not with a view towards the resale, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYtransfer or distribution thereof, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFnor with any present intention of distributing the Shares, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYbut subject, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDnevertheless, to any requirement of law that the disposition of the Investor's property shall at all times be within the Investor's control, and without prejudice to the Investor's right at all times to sell or otherwise dispose of all or any part of such securities under a registration under the Securities Act or under an exemption from said registration available under the Securities Act.
b. The (b) It has full power and legal right to execute and deliver this Agreement and to perform its obligations hereunder.
(c) It is a validly existing limited liability company, duly organized under the laws of the State of Delaware.
(d) It has taken all action necessary for the authorization, execution, delivery, and performance of this Agreement and its obligations hereunder, and, upon execution and delivery by the Company, this Agreement shall constitute the valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms, except that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and general principles of equity.
(ie) There are no claims for brokerage commissions or finder's fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement made by or on behalf of the Investor and the Investor agrees to indemnify and hold the Company harmless against any costs or damages incurred as a result of any such claim.
(f) It has no need for liquidity such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the SharesCompany as contemplated by this Agreement, (ii) and is able to bear the substantial economic risks risk of an such investment in the Shares for an indefinite period, period of time. It has been furnished access to such information and (iii) at documents as it has requested and has been afforded an opportunity to ask questions of and receive answers from representatives of the present time, could afford Company concerning the complete loss of such investment in the Shares.
c. The address set forth at the end terms and conditions of this Agreement is the Investor's true and correct residence, and the Investor has no present intention purchase of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictionscontemplated hereby. The Investor represents to the Company that he It is an “"accredited investor”, as such term is defined in " within the meaning of Rule 501(a) 501 of Regulation D under the Securities Act Act.
(g) As of 1933the date hereof, as amendedwithout giving effect to the transactions contemplated hereby, the Investor does not beneficially own (within the meaning of Rule 13d-3 under the Exchange Act) any shares of Common Stock of the Company. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in shall promptly notify the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act such number of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss shares beneficially owned by the Investor changes prior to the Second Closing Date, other than by way of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention purchase of Shares pursuant to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;this Agreement.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Micro Investment LLC), Securities Purchase Agreement (Micro Therapeutics Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor that: (i) has no need for liquidity in it is acquiring the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are Convertible Note to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company purchased by it hereunder for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely own account for the Investor's own account, for purpose of investment and are not being purchased with a view to or for sale in connection with any distribution thereof; provided, however, that nothing herein contained shall prevent the resale Investor, upon written notice to the Company explaining in reasonable detail the transfer or other distribution proposed transfer, from selling or transferring the Convertible Note in any transaction that, in the opinion of its special counsel, is exempt from the registration provisions of the SharesSecurities Act; (ii) it has full power and the Investor has no present plans authority to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands and perform its obligations under this Agreement and that this Subscription may be accepted or rejected in whole or in part in Agreement has been duly authorized, executed and delivered by a Person authorized to do so; (iii) it has carefully reviewed the sole representations and absolute discretion of warranties concerning the Company, its business and its personnel; the Company has made available to it any and all written information which it has requested and has answered to such Investor's satisfaction all inquiries made by it; (iv) it has adequate net worth and means of providing for its current needs and personal contingencies to sustain a complete loss of its investment in the Company; (v) its overall commitment to investments which are not readily marketable is not disproportionate to its net worth; (vi) its investment in the Convertible Note will not cause such overall commitment to become excessive; (vii) it has not relied upon any financial projections received from the Company in connection with the transactions contemplated by this Agreement, unless properly revoked before ; (viii) it is an Accredited Investor within the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations definition set forth in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 501(a) promulgated under the Securities Act permitting resales Act; (ix) it is not making this investment as a result of any form of general solicitation or general advertising; (x) this Agreement constitutes the valid and binding obligation of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and Investor enforceable in accordance with its terms; and (xi) the terms execution of and conditions performance of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, transactions contemplated by this Agreement and compliance with some other exemption from registration its provisions by it will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions not violate any provision of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made law applicable to the Investor and will not conflict with or result in any breach of any of the terms, conditions or provisions of, or constitute a default under any agreement or other instrument to which such Investor is a party or by any brokerwhich he is bound, the Company, its agents or employees or any other persondecree, expressly judgment, order, statute, rule or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required regulation application to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;it.
Appears in 1 contract
Samples: Purchase Agreement (C3d Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (a) (i) It is an institutional “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act; (ii) it has no need for liquidity sufficient knowledge and experience in investing in companies similar to the Company so as to be able to evaluate the risks and merits of its investment in the SharesCompany and it is able financially to bear the risks thereof; (iii) it has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management; (iiiv) all documents, records, and information pertaining to its investment in the Common Stock and the Company that have been requested by it, if any, have been made available or delivered to it prior to the date hereof; (v) its financial condition is such that it is able to bear the substantial economic risks risk of an investment in holding the Shares for an indefinite periodperiod of time and can bear the loss of the entire investment in such Shares; (vi) it is not purchasing the Shares as the result of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act or as a result of the Investor’s review of public filings by the Company; (vii) it has independently evaluated the merits of its decision to purchase securities of the Company; (viii) it has not relied on the advice of, or any representations by, any of Xxxxxxx Xxxxx & Co. LLC, Xxxxxxxxx LLC, TD Securities (USA) LLC and Xxxxxx, Xxxxxxxx & Company, Incorporated (acting in their capacity as placement agents for the Offering, collectively, the “Placement Agents”), or any of their affiliates or any representative of the Placement Agents or their affiliates in making such decision; and (iiiix) at none of the present time, could afford the complete loss Placement Agents nor any of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor their representatives has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining responsibility with respect to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written completeness or oral representation accuracy of any information or information inconsistent with such information has been made or materials furnished to the Investor in connection with the transactions contemplated hereby, and the Investor understands that the Placement Agents have acted solely as the agents of the Company in this placement of the Shares and if so made, the Investor has not been relied uponon the business or legal advice of the Placement Agents or any of their agents, counsel or affiliates in making its investment decision hereunder, and confirms that none of such persons has made any representations or warranties to the Issuer in connection with the transactions contemplated hereby.;
e. (b) The Investor understands that this Agreement is made in reliance upon the Investor’s express representations, which it hereby represents and warrants to the Company, that (i) the Shares being purchased by the Investor are being acquired for the Investor’s own account (and not on behalf of any other person or entity) for the purpose of investment and not with a view to, or for sale in connection with, the distribution thereof, nor with any present intention of distributing or selling the Shares or any portion thereof; (ii) the Investor was not organized for the specific purpose of acquiring the Shares; and (iii) the Shares will not be sold by the Investor without registration under the Securities Act or applicable state securities laws, or an exemption therefrom;
(c) The Investor further understands that the Shares being purchased by the Investor hereunder have not been registered under the Securities Act, nor pursuant to the provisions of the Act or any state securities laws or other laws of any other applicable jurisdictions, and are instead being offered and sold in reliance on exemptions for private offerings contained in an exemption from such registration requirements. The Investor represents and warrants to the Company that, to the Investor’s knowledge, the Investor has not taken any action which could reasonably be expected to cause the sale of the Shares to be sold by the Company to the Investor to fail to qualify as exempt from the registration requirements of the Securities Act. The Investor further understands that until such time as the Shares shall have been registered under the Securities Act and applicable state securities laws or shall have been transferred in the laws accordance with an opinion of such jurisdictions. The Investor represents counsel reasonably satisfactory to the Company that he such registration is an “accredited investor”not required, as stop transfer instructions shall be issued to the Company’s transfer agent and any certificate or certificates representing such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware securities shall bear a restrictive legend stating that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares securities have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under Act and applicable state securities laws and referring to restrictions on the Securities Act or an exemption from such registration is available. transferability and sale thereof;
(d) The Investor further understands that the Company has no intention its representations and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales warranties hereunder will not preclude disposition of the Shares under Rule 144 under the Securities Act (which it understands is not nowwithout registration thereof, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased in compliance with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will (“Rule 144”). The Investor understands and acknowledges, however, that there may not be available for at least one (1) yearwhen the Investor wishes to sell the Shares, and there can be no assurance that or any portion thereof, the conditions necessary adequate current public information with respect to the Company which would permit routine offers or sales of the Shares under such securities pursuant to Rule 144 will ever be satisfied144, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not availabletherefore, compliance with the Securities Act or some other exemption from the registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale and prospectus delivery requirements of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:Securities Act may be required for any such offer or sale; and
(i) that The Investor is validly existing as a limited partnership in good standing under the Shares are a speculative investment and involve a high degree laws of risk of loss by Delaware; (ii) the Investor has all requisite power and authority to execute and deliver this Agreement; and (iii) this Agreement constitutes the valid and legally binding obligation of the Investor's entire investment in the Company;
(ii) that there is no guarantee that , enforceable against the Investor will realize any gain from his or her investment in accordance with its terms, subject to bankruptcy, reorganization, insolvency and other similar laws affecting the Company enforcement of creditors’ rights generally and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length general principles of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;equity.
Appears in 1 contract
Samples: Share Purchase Agreement (Rapport Therapeutics, Inc.)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to to, and covenants and agrees with, the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEYThis Agreement constitutes a valid and binding agreement of Investor enforceable against it in accordance with its terms, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYexcept as such enforceability may be limited by applicable bankruptcy, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFmoratorium, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYinsolvency, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDreorganization, fraudulent conveyance or other laws affecting the enforcement of creditors’ rights generally or by general equitable principles, including, without limitation, those limiting the availability of specific performance, injunctive relief and other equitable remedies and those providing for equitable defenses.
b. The Investor has adequate means of providing for its current needs and possible contingencies, it anticipates no need now or in the foreseeable future to sell the Securities for which it hereby subscribes and it can afford the loss of its entire investment in the Company.
c. The Investor has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Company and of making an informed investment decision.
d. The Investor will be the only owner, beneficial or otherwise, of the Securities being subscribed for hereby.
e. The Investor hereby acknowledges that it has had access to copies of the filings that the Company has made with the Securities and Exchange Commissions (“SEC”). Investor has been given, and has availed itself of, the opportunity to obtain information from, and to ask questions and receive answers of, the officers and representatives of the Company to the extent Investor deemed necessary with respect to the Company and its operations. The Investor has also had the opportunity to ask questions of, and receive answers from, the officers and representatives of the Company concerning the terms and conditions of this investment. All questions have been answered to the full satisfaction of the Investor. Investor acknowledges that there may be material information or developments regarding the Company or its business or operations not reflected or disclosed in the SEC filings and that, in connection with Investor’s purchase of the Securities, Investor is not relying on any representation or warranty, oral or written, of any person (including the Company or any affiliate, director, officer or representative thereof), except for the express representations and warranties of the Company set forth in Section 4 below. The Investor also acknowledges that the Company has not rendered any investment advice to the Investor with respect to the suitability of an investment in the Securities. Non-US Subscription Agreement
f. The Securities for which the Investor hereby subscribes will be acquired for the Investor’s own account for investment. The Investor intends to hold the Securities indefinitely and it is not acquiring the Securities with a view toward distribution in a manner which would require registration under the Securities Act, and it does not presently have any reasons to anticipate any change in its circumstances or other particular occasion or event which would cause it to sell the Securities.
g. The Investor is aware that: (i) an investment in the Company involves a high degree of risk; and (ii) no federal, state, local or foreign income tax consequences which may be relevant to it are discussed in any documents provided in connection with the acquisition of the Securities.
h. The Investor (i) has no need for liquidity the capacity to purchase and hold the Securities and represents that the acquisition of the Securities will not result in any breach of, or violation of the investment in terms or provisions of, or constitute a default under, any indenture or other agreement or instrument by which the SharesInvestor or the Investor’s property is bound, or violate any applicable law, regulation or court decree; (ii) is able to bear has obtained such tax advice that the substantial economic risks of an investment in the Shares for an indefinite period, Investor has deemed necessary; and (iii) at represents that the present time, could afford Investor’s residence is as set forth on the complete loss of such investment in the Sharessignature page hereof.
c. The address set forth at i. No consent, approval or authorization of, or filing, registration or qualification with, any court or governmental authority on the end part of the Investor is required for the execution and delivery of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to and the performance of the Investor. The undersigned has relied only on such documents ’s obligations and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied uponduties hereunder.
e. j. The Investor understands that the Shares Company will have not been registered under the Securities Act, nor pursuant right to rescind the provisions subscription of any investor if any of the securities laws representations, warranties, covenants, or agreements contained herein are found to be misleading, false, or incorrect.
k. The Investor has not paid, and will not pay, a commission, finder’s fee, or other laws of selling cost or fee to any other applicable jurisdictions, person in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. connection with its subscription.
l. The Investor represents to the Company that he is an “accredited investor”, ” as such term is defined in Rule 501(aRegulation D of the Act. Accredited Investors include, but are not limited to:
(i) Any organization described in Section 501(c)(3) of Regulation D the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;
(ii) Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer;
(iii) Any natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his purchase exceeds $1,000,000; Non-US Subscription Agreement
(iv) Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year;
(v) Any entity in which all of the equity owners are accredited investors; or
(vi) Any bank as defined in Section 3(a)(2) of the Act (defined below), or savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity.
m. The Investor acknowledges that the Securities being offered hereunder has not been registered under the United States Securities Act of 1933, as amendedamended (the “Act”), and agrees that it will not offer or sell such Securities in the United States to, or for the account or benefit of, “U.S. persons” (as such term is defined in Regulation S promulgated under the Act; herein, “Regulation S”) except in accordance with Regulation S under the Act, pursuant to registration under the Act or pursuant to an available exemption from the registration requirements of the Act. The Investor is fully aware that agrees not to engage in hedging transactions involving the Shares to which he or she is subscribing are to be sold securities received pursuant hereto unless in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreementcompliance with the Act. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands acknowledges that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or register any rule transfer of the Securities and Exchange Commission acquired hereunder, unless such transfer is made in accordance with Regulation S, pursuant to registration under the Act or any successor theretopursuant to an available exemption under the Act.
f. n. The Investor understands represents and warrants that it has not received offering materials in the United States (as defined in Regulation S), if it is an entity it is formed under the laws of a jurisdiction other than the United States, and that its principal place of business is outside the United States.
o. The Investor represents and warrants that it is not a “U.S. person” (as such term is defined in Regulation S) and that it is not acquiring the Securities for the account or benefit of any U.S. person.
p. The Investor acknowledges that the certificate(s) representing the Shares Common Stock received pursuant to this Agreement will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Companylegend: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE SECURITIES COVERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "“SECURITIES ACT") ”), OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT JURISDICTIONS AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLDOFFERED OR SOLD WITHIN THE UNITED STATES OR TO, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES THE ACCOUNT OR BENEFIT OF, “U.S. PERSONS” (AS DEFINED IN REGULATION S PROMULGATED UNDER THE SECURITIES ACT) EXCEPT IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT, PURSUANT TO REGISTRATION OF THE SECURITIES UNDER THE SECURITIES ACT OR PURSUANT Non-US Subscription Agreement TO AN OPINION AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIREDSECURITIES ACT.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Samples: Subscription Agreement (BBJ Environmental Technologies Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (a) (i) It is an institutional “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act; (ii) it has no need for liquidity sufficient knowledge and experience in investing in companies similar to the Company so as to be able to evaluate the risks and merits of its investment in the SharesCompany and it is able financially to bear the risks thereof; (iii) it has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management; (iiiv) all documents, records, and information pertaining to its investment in the Common Stock and the Company that have been requested by it, if any, have been made available or delivered to it prior to the date hereof; (v) its financial condition is such that it is able to bear the substantial economic risks risk of an investment in holding the Shares for an indefinite periodperiod of time and can bear the loss of the entire investment in such Shares; (vi) it is not purchasing the Shares as the result of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act or as a result of the Investor’s review of public filings by the Company; (vii) it has independently evaluated the merits of its decision to purchase securities of the Company; (viii) it has not relied on the advice of, or any representations by, any of Xxxxxxxxx LLC, Xxxxx and Company, LLC and Xxxxx Xxxxxxx & Co. (acting in their capacity as placement agents for the Offering, collectively, the “Placement Agents”), or any of their affiliates or any representative of the Placement Agents or their affiliates in making such decision, and (iiiix) at none of the present time, could afford the complete loss Placement Agents nor any of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor their representatives has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining responsibility with respect to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written completeness or oral representation accuracy of any information or information inconsistent with such information has been made or materials furnished to the Investor in connection with the Shares and if so made, has not been relied upon.transactions contemplated hereby;
e. (b) The Investor understands that this Agreement is made in reliance upon the Investor’s express representations, which it hereby represents and warrants to the Company, that (i) the Shares being purchased by the Investor are being acquired for the Investor’s own account (and not on behalf of any other person or entity) for the purpose of investment and not with a view to, or for sale in connection with, the distribution thereof, nor with any present intention of distributing or selling the Shares or any portion thereof, (ii) the Investor was not organized for the specific purpose of acquiring the Shares and (iii) the Shares will not be sold by the Investor without registration under the Securities Act or applicable state securities laws, or an exemption therefrom;
(c) The Investor further understands that the Shares being purchased by the Investor hereunder have not been registered under the Securities Act, nor pursuant to the provisions of the Act or any state securities laws or other laws of any other applicable jurisdictions, and are instead being offered and sold in reliance on exemptions for private offerings contained in an exemption from such registration requirements. The Investor represents and warrants to the Company that, to the Investor’s knowledge, the Investor has not taken any action which could reasonably be expected to cause the sale of the Shares to be sold by the Company to the Investor to fail to qualify as exempt from the registration requirements of the Securities Act. The Investor further understands that until such time as the Shares shall have been registered under the Securities Act and applicable state securities laws or shall have been transferred in the laws accordance with an opinion of such jurisdictions. The Investor represents counsel reasonably satisfactory to the Company that he such registration is an “accredited investor”not required, as stop transfer instructions shall be issued to the Company’s transfer agent and any certificate or certificates representing such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware securities shall bear a restrictive legend stating that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares securities have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under Act and applicable state securities laws and referring to restrictions on the Securities Act or an exemption from such registration is available. transferability and sale thereof;
(d) The Investor further understands that the Company has no intention its representations and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales warranties hereunder will not preclude disposition of the Shares under Rule 144 under the Securities Act (which it understands is not nowwithout registration thereof, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased in compliance with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will (“Rule 144”). The Investor understands and acknowledges, however, that there may not be available for at least one (1) yearwhen the Investor wishes to sell the Shares, and there can be no assurance that or any portion thereof, the conditions necessary adequate current public information with respect to the Company which would permit routine offers or sales of the Shares under such securities pursuant to Rule 144 will ever be satisfied144, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not availabletherefore, compliance with the Securities Act or some other exemption from the registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale and prospectus delivery requirements of the Shares without registration.Securities Act may be required for any such offer or sale; and
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(e) (i) that The Investor is validly existing as a limited company in good standing under the Shares are a speculative investment and involve a high degree laws of risk of loss by Cyprus; (ii) the Investor has all requisite power and authority to execute and deliver this Agreement; and (iii) this Agreement constitutes the valid and legally binding obligation of the Investor's entire investment in the Company;
(ii) that there is no guarantee that , enforceable against the Investor will realize any gain from his or her investment in accordance with its terms, subject to bankruptcy, reorganization, insolvency and other similar laws affecting the Company enforcement of creditors’ rights generally and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length general principles of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;equity.
Appears in 1 contract
Samples: Share Purchase Agreement (Acrivon Therapeutics, Inc.)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company Holdings as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. (a) The Investor (i) has no need for liquidity in the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in purchasing the Shares for an indefinite periodinvestment, and (iii) at has not previously solicited the present timetransfer, could afford the complete loss resale or disposal of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so madepresently does not have a view to, has not been relied uponor the purpose of, engaging in a distribution thereof or of any interest therein in any transaction that would be in violation of the securities laws of the United States or any state thereof.
e. (b) The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that amended (the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities “Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now”), and will not likely be, available) or any rule be “restricted securities” within the meaning of the Securities regulations under the Act, and Exchange Commission by reason of the foregoing the Shares may not be resold in the absence of an effective registration statement under, or any successor thereto.
f. The Investor understands applicable exemption from, the Act, and that the certificate(s) representing following restrictive legend will be affixed to the Shares will bear upon issuance to the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the CompanyInvestor: “THE SHARES OF STOCK SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "AMENDED, OR APPLICABLE STATE SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTIONLAWS. THESE SHARES SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES THESE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR COVERING SUCH SHARES SECURITIES UNDER THE ACTSECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR AN THE AVAILABILITY, IN THE OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH COUNSEL, OF AN EXEMPTION FROM REGISTRATION IS NOT REQUIREDTHEREUNDER.”
g. (c) The Shares Investor understands that there are being acquired solely for substantial restrictions on the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution transferability of the Shares; , including without limitation those referred to in Section 4(b), Section 11 (Sale of the Corporation), Section 12 (Co-Sale Right) and Section 13 (Permitted Transfers). Accordingly, the Investor has no present plans may have to enter into any contract, undertaking, agreement or arrangement relating hold the Shares indefinitely and it may not be possible for the Investor to any resale or other distribution of liquidate his investment in the Shares.
h. (d) The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole is a senior executive of GVI, and absolute discretion has full knowledge of the Company, and this Agreement, unless properly revoked before the completion operations of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the RuleGVI. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be requiredhas had an opportunity to ask questions and receive answers concerning Holdings and to obtain such additional information as the Investor has requested. The Investor understands that the Company is under no obligation knowledgeable, sophisticated and experienced in business and financial matters and with respect to securities similar to the undersigned Shares, and is capable of evaluating the merits and risks of purchasing the Shares. The Investor is able to register bear the economic risk of his investment in the Shares or and is able to comply with afford the conditions complete loss of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. such investment. The Investor has been advised to consult with relied solely on the representations and warranties contained herein and the Investor’s own attorney regarding legal, tax, and other matters concerning knowledge about GVI in making his decision to acquire the Shares. The “Investor” is an investment in “Accredited Investor” within the Company and has done so, to meaning of Rule 501(a) of Regulation D under the extent the undersigned considers necessaryAct.
k. (e) The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize having an opportunity to obtain any gain from his or her investment in the Company and that further information the Investor may lose have requested regarding his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will investment in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;Holdings.
Appears in 1 contract
Samples: Restricted Stock Subscription Agreement (Gvi Security Solutions Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to to, and covenants and agrees with, the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEYThis Agreement constitutes a valid and binding agreement of Investor enforceable against it in accordance with its terms, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYexcept as such enforceability may be limited by applicable bankruptcy, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFmoratorium, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYinsolvency, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDreorganization, fraudulent conveyance or other laws affecting the enforcement of creditors’ rights generally or by general equitable principles, including, without limitation, those limiting the availability of specific performance, injunctive relief and other equitable remedies and those providing for equitable defenses.
b. The Investor (i) has adequate means of providing for its current needs and possible contingencies, it anticipates no need for liquidity now or in the foreseeable future to sell the Securities for which it hereby subscribes and it can afford the loss of its entire investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the SharesCompany.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention such knowledge and experience in financial and business matters that it is capable of changing such residence to any other state or jurisdictionevaluating the merits and risks of investment in the Company and of making an informed investment decision.
d. The Investor will be the only owner, beneficial or otherwise, of the Securities being subscribed for hereby.
e. The Investor has received, and read, and is familiar with the Offering Memorandum of the Company dated September 15, 2003 and confirms that all documents, records and books which the Investor has requested pertaining to the Investor’s proposed investment in the Company reasonably requested by the Investor have been made available to it. The Investor is aware that no federal or state agency has passed upon the Securities or made any finding or determination concerning the fairness of this investment.
f. The Investor has had an opportunity to ask questions of, and receive answers from, representatives of the Company concerning the terms and conditions of this investment, and all such questions have been answered to the full satisfaction of the Investor. The undersigned has relied only on such documents and Investor understands that no written or oral representation or information inconsistent with such information person other than the Company has been authorized to make any representation and if made, such representation may not be relied on unless it is made or furnished in writing and signed by the Company. The Company has not, however, rendered any investment advice to the Investor with respect to the suitability of an investment in the Securities.
g. The Securities for which the Investor hereby subscribes will be acquired for the Investor’s own account for investment. The Investor intends to hold the Securities indefinitely and it is not acquiring the Securities with a view toward distribution in a manner which would require registration under the Securities Act, and it does not presently have any reasons to anticipate any change in its circumstances or other particular occasion or event which would cause it to sell the Securities.
h. The Investor is aware that: (i) an investment in the Company involves a high degree of risk; and (ii) no federal, state, local or foreign income tax consequences which may be relevant to it are discussed in any documents provided in connection with the Shares and if so made, has not been relied uponacquisition of the Securities.
e. i. The Investor has received no representations or warranties from the Company other than those furnished in writing and signed by the Company.
j. The Investor (i) has the capacity to purchase and hold the Securities and represents that the acquisition of the Securities will not result in any breach of, or violation of the terms or provisions of, or constitute a default under, any indenture or other agreement or instrument by which the Investor or the Investor’s property is bound, or violate any applicable law, regulation or court decree; (ii) has obtained such tax advice that the Investor has deemed necessary; and (iii) represents that the Investor’s residence is as set forth on the signature page hereof.
k. No consent, approval or authorization of, or filing, registration or qualification with, any court or governmental authority on the part of the Investor is required for the execution and delivery of this Agreement by the Investor and the performance of the Investor’s obligations and duties hereunder.
l. The Investor understands that the Shares Company will have the right to rescind the subscription of any investor if any of the representations, warranties, covenants, or agreements contained herein are found to be misleading, false, or incorrect.
m. The Investor has not paid, and will not pay, a commission, finder’s fee, or other selling cost or fee to any person in connection with its subscription.
n. The Investor is an “accredited investor” as such term is defined in Regulation D of the Act. Accredited Investors include, but are not limited to:
(i) Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;
(ii) Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer;
(iii) Any natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his purchase exceeds $1,000,000;
(iv) Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year;
(v) Any entity in which all of the equity owners are accredited investors; or
(vi) Any bank as defined in Section 3(a)(2) of the Act (defined below), or savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity.
o. The Investor acknowledges that the Securities being offered hereunder have not been registered under the United States Securities Act of 1933, as amended (the “Act”), nor pursuant to and agrees that it will not offer or sell the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained Securities in the Securities Act and in United States to, or for the laws of such jurisdictions. The Investor represents to the Company that he is an account or benefit of, “accredited investor”, U.S. persons” (as such term is defined in Rule 501(a) of Regulation D S promulgated under the Securities Act; herein, “Regulation S”) except in accordance with Regulation S under the Act, pursuant to registration under the Act or pursuant to an available exemption from the registration requirements of 1933, as amendedthe Act. The Investor is fully aware that agrees not to engage in hedging transactions involving the Shares to which he or she is subscribing are to be sold shares received pursuant hereto unless in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreementcompliance with the Act. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands acknowledges that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or register any rule transfer of the Securities and Exchange Commission acquired hereunder, unless such transfer is made in accordance with Regulation S, pursuant to registration under the Act or any successor theretopursuant to an available exemption under the Act.
f. p. The Investor understands represents and warrants that it has not received offering materials in the United States (as defined in Regulation S), if it is an entity it is formed under the laws of a jurisdiction other than the United States, and that its principal place of business is outside the United States.
q. The Investor represents and warrants that it is not a “U.S. person” (as such term is defined in Regulation S) and that it is not acquiring the Securities for the account or benefit of any U.S. person.
r. The Investor acknowledges that the certificate(s) representing the Shares Securities received pursuant to this Agreement will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Companylegend: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE SECURITIES COVERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "“SECURITIES ACT") ”), OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT JURISDICTIONS AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLDOFFERED OR SOLD WITHIN THE UNITED STATES OR TO, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES THE ACCOUNT OR BENEFIT OF, “U.S. PERSONS” (AS DEFINED IN REGULATION S PROMULGATED UNDER THE SECURITIES ACT) EXCEPT IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT, PURSUANT TO REGISTRATION OF THE SECURITIES UNDER THE SECURITIES ACT OR PURSUANT TO AN OPINION AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIREDSECURITIES ACT.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Samples: Subscription Agreement (BBJ Environmental Technologies Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (a) (i) It is an institutional “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act; (ii) it has no need for liquidity sufficient knowledge and experience in investing in companies similar to the Company so as to be able to evaluate the risks and merits of its investment in the SharesCompany and it is able financially to bear the risks thereof; (iii) it has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management; (iiiv) all documents, records, and information pertaining to its investment in the Common Stock and the Company that have been requested by it, if any, have been made available or delivered to it prior to the date hereof; (v) its financial condition is such that it is able to bear the substantial economic risks risk of an investment in holding the Shares for an indefinite periodperiod of time and can bear the loss of the entire investment in such Shares; (vi) it is not purchasing the Shares as the result of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act or as a result of the Investor’s review of public filings by the Company; (vii) it has independently evaluated the merits of its decision to purchase securities of the Company; (viii) it has not relied on the advice of, or any representations by, any of Xxxxxxx Xxxxx & Co. LLC, Xxxxxx Xxxxxxx & Co. LLC, Xxxxxxxxx LLC, and Citigroup Global Markets Inc. (iiiacting in their capacity as placement agents for the Offering, collectively, the “Placement Agents”), or any of their affiliates or any representative of the Placement Agents or their affiliates in making such decision; and (ix) at none of the present time, could afford the complete loss Placement Agents nor any of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor their representatives has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining responsibility with respect to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written completeness or oral representation accuracy of any information or information inconsistent with such information has been made or materials furnished to the Investor in connection with the transactions contemplated hereby, and the Investor understands that the Placement Agents have acted solely as the agents of the Company in this placement of the Shares and if so made, the Investor has not been relied upon.on the business or legal advice of the Placement Agents or any of their agents, counsel or affiliates in making its investment decision hereunder, and confirms that none of such persons has made any representations or warranties to the Issuer in connection with the transactions contemplated hereby;
e. (b) The Investor understands that this Agreement is made in reliance upon the Investor’s express representations, which it hereby represents and warrants to the Company, that (i) the Shares being purchased by the Investor are being acquired for the Investor’s own account (and not on behalf of any other person or entity) for the purpose of investment and not with a view to, or for sale in connection with, the distribution thereof, nor with any present intention of distributing or selling the Shares or any portion thereof; (ii) the Investor was not organized for the specific purpose of acquiring the Shares; and (iii) the Shares will not be sold by the Investor without registration under the Securities Act or applicable state securities laws, or an exemption therefrom;
(c) The Investor further understands that the Shares being purchased by the Investor hereunder have not been registered under the Securities Act, nor pursuant to the provisions of the Act or any state securities laws or other laws of any other applicable jurisdictions, and are instead being offered and sold in reliance on exemptions for private offerings contained in an exemption from such registration requirements. The Investor represents and warrants to the Company that, to the Investor’s knowledge, the Investor has not taken any action which could reasonably be expected to cause the sale of the Shares to be sold by the Company to the Investor to fail to qualify as exempt from the registration requirements of the Securities Act. The Investor further understands that until such time as the Shares shall have been registered under the Securities Act and applicable state securities laws or shall have been transferred in the laws accordance with an opinion of such jurisdictions. The Investor represents counsel reasonably satisfactory to the Company that he such registration is an “accredited investor”not required, as stop transfer instructions shall be issued to the Company’s transfer agent and any certificate or certificates representing such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware securities shall bear a restrictive legend stating that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares securities have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under Act and applicable state securities laws and referring to restrictions on the Securities Act or an exemption from such registration is available. transferability and sale thereof;
(d) The Investor further understands that the Company has no intention its representations and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales warranties hereunder will not preclude disposition of the Shares under Rule 144 under the Securities Act (which it understands is not nowwithout registration thereof, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased in compliance with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will (“ Rule 144”). The Investor understands and acknowledges, however, that there may not be available for at least one (1) yearwhen the Investor wishes to sell the Shares, and there can be no assurance that or any portion thereof, the conditions necessary adequate current public information with respect to the Company which would permit routine offers or sales of the Shares under such securities pursuant to Rule 144 will ever be satisfied144, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not availabletherefore, compliance with the Securities Act or some other exemption from the registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale and prospectus delivery requirements of the Shares without registration.Securities Act may be required for any such offer or sale; and
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(e) (i) that The Investor is validly existing as a limited partnership in good standing under the Shares are a speculative investment and involve a high degree laws of risk of loss by Delaware; (ii) the Investor has all requisite power and authority to execute and deliver this Agreement; and (iii) this Agreement constitutes the valid and legally binding obligation of the Investor's entire investment in the Company;
(ii) that there is no guarantee that , enforceable against the Investor will realize any gain from his or her investment in accordance with its terms, subject to bankruptcy, reorganization, insolvency and other similar laws affecting the Company enforcement of creditors’ rights generally and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length general principles of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;equity.
Appears in 1 contract
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor ---------------------------------------------- hereby represents and warrants to the Company and acknowledges and intends that the Company rely thereon, as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. (a) The Investor will not sell, assign, pledge, transfer, or otherwise dispose of, whether directly or indirectly, all or any portion of the Purchased Securities, or any Common Stock obtained upon the exercise or conversion of the Purchased Securities or as a stock dividend on the Common Stock so obtained (isuch Common Stock being hereinafter collectively referred to as the "Underlying Securities"; the Purchased Securities and the Underlying Securities are hereinafter collectively referred to as the "Securities")), to any person or entity without complying with applicable securities laws;
(b) The Investor is acquiring the Purchased Securities and the Underlying Securities for the Investor's own account, for investment purposes only and not with a view to any distribution of such Securities;
(c) The Investor acknowledges and agrees that the Company has no need for liquidity informed the Investor that the Securities are not registered under any securities laws, and, therefore, that (absent registration under or exemption from applicable securities laws) the Securities are subject to substantial restrictions on transfer;
(d) The Investor has investigated the purchase of the Securities to the extent the Investor deems necessary or desirable, and the Company has provided the Investor with any assistance in connection therewith which Investor has requested. The Investor has such knowledge and experience in financial and business matters that the Investor is capable of evaluating the merits and risks of the acquisition of the Securities and of making an informed investment in decision with respect thereto and the Shares, (ii) is able Investor has the ability to bear the substantial economic risks risk of an investment in the Shares Company and to withstand a complete loss of its investment. The Investor is financially able to hold the Securities for an indefinite periodperiod of time;
(e) The Investor has been furnished by the Company with all information the Investor has reasonably requested in order to form an informed investment decision concerning the purchase of the Securities. The Investor has been afforded an opportunity to ask questions of, and receive answers from representatives of the Company concerning the terms and conditions of the Investor's purchase of the Securities and has been afforded the opportunity to obtain any additional information (iiito the extent the Company had such information or could acquire it without unreasonable effort or expense) at necessary to verify the present time, could afford accuracy of information otherwise furnished by the complete loss Company;
(f) The Investor understands that no United States federal or state agency or any agency of such any other government has passed upon or made any recommendation or endorsement of any investment in the Shares.Company;
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. (g) The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.organized for the purpose of purchasing the Securities;
e. (h) The Investor is a "financial institution" or "institutional buyer" as such terms are defined in Section 36- 490(b)(8) of the General Statutes of Connecticut;
(i) The Investor understands that the Shares have not been registered under certificates evidencing the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Purchased Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares Underlying Securities will bear the following a legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Companystating in substance: “"THE SHARES OF STOCK SECURITIES REPRESENTED BY THIS CERTIFICATE HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTIONAMENDED. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES THEY MAY NOT BE SOLD, PLEDGED OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE DISPOSED OF IN THE ABSENCE OF A REGISTRATION STATEMENT FOR IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH SHARES UNDER THE ACT, ACT OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS SALE, OFFER FOR SALE, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION DOES NOT REQUIREDVIOLATE THE PROVISIONS OF SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.”" provided, however, that the Company agrees to cause such legend to be removed from any certificates representing any Securities after such Securities have been transferred pursuant to a registered public offering, an effective exemption under Section 4(1) of that Act, or Rule 144 promulgated thereunder; and
g. (j) The Shares Investor agrees and acknowledges that, as of the date hereof: (i) the Company has not reserved shares of Common Stock for issuance upon the exercise of the Class I Warrants, the Class II Warrants or the 90,000 additional shares of Common Stock that the Class III Warrants (as defined in Section 7.7 hereof) are being acquired solely amended to grant to the Investor, or upon the conversion of the Debenture, except as described in Section 3.7 below; (ii) that the Company does not currently have authorized and unreserved a sufficient number of shares of Common Stock to allow for the Investor's own account, for investment full conversion and are not being purchased with a view to or for the resale or other distribution exercise of the SharesPurchased Securities; and (iii) that pursuant to the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution terms of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, Purchased Securities and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that while the Company is under no obligation obligated to use its best efforts to cause such a sufficient number of shares to be authorized and reserved for issuance upon the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale conversion and exercise of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legalPurchased Securities as soon as practicable, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and it is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be not required to remain as owner of accomplish the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Companysame prior to September 1, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;1995.
Appears in 1 contract
Samples: Convertible Subordinated Debenture Purchase Agreement (Memry Corp)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (i) has no need for liquidity in the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares Units are being sold in reliance upon the exemptions from registration provided for in the Securities Act and/or Regulation D promulgated thereunder, for transactions involving limited offers and sales, and the Investor, for himself and for his heirs, personal representatives, successors and assigns, makes the following representations, declarations and warranties with the intent that the same may be relied upon in determining the suitability of the undersigned as an investor in the Fund:
(a) The Investor has received, carefully read, and understands the Memorandum and all exhibits thereto and has consulted, or had the opportunity to consult, his own attorney, accountant or investment advisor with respect to the investment contemplated hereby and its suitability for the Investor. Any special acknowledgment set forth below with respect to any statement contained in the Memorandum shall not be deemed to limit the generality of this representation and warranty.
(b) During the course of this transaction, and prior to the purchase of any of the Units, the Investor has had the opportunity to ask questions of and receive answers from the Fund or the Manager, or any of its principals, concerning the terms and conditions of the offering described in the Memorandum, and to obtain any additional information necessary to verify the information contained in the Memorandum or otherwise relative to the financial data and business of the Fund, to the extent that such parties possess such information or can acquire it without unreasonable effort or expense, and all such questions, if asked, have been answered satisfactorily and all such documents, if examined, have been found to be fully satisfactory.
(c) The Investor understands and acknowledges that (i) that the Investor must bear the economic risk of his investment in the Units until the termination of the Fund or until the Investor withdraws from the Fund, (ii) the Units have not been registered under the Securities Act, nor pursuant to the provisions of the Act or any state securities laws or other laws of any other applicable jurisdictions, and are being offered and sold in reliance on upon exemptions for private offerings contained provided in the Securities Act and in the state securities laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have transactions not been registered under the Securities Act, involving any public offering and, therefore, cannot be offered resold or sold transferred unless they are subsequently registered under the Securities Act and applicable state laws or unless an exemption from such registration is available. The , (iii) the Investor further understands is purchasing the Units for investment purposes only for the account of the Investor and not with any view toward a distribution thereof, (iv) the Investor is investing in the Fund as a common investment vehicle rather than as a means to facilitate the individual or separate investment decisions of holders of interests in the Investor, (v) the Investor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person or anyone else any of the Units that the Company has no intention and is under no obligation Investor hereby subscribes to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) purchase or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933part thereof, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any such contract, undertaking, agreement or arrangement relating to any resale or other distribution of arrangement, (vi) the Shares.
h. The Investor understands that this Subscription the Units cannot be sold or transferred without the prior written consent of the Manager, which may be accepted withheld in its sole discretion and shall be withheld if such transfer could cause the Fund to become subject to regulation under federal law as an investment company or rejected in whole or in part in would subject the sole and absolute discretion Fund to adverse tax consequences, (vii) there shall be no public market for the Units, (viii) any disposition of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares Units may result in unfavorable tax consequences to the Investor, shall survive (ix) the Investor’s death, disability Fund does not have any obligation or insolvency, except that intention to register the Investor shall have no obligations in Units or the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated offering thereof under the Securities Act permitting resales or any state securities laws, or of supplying the information that may be necessary to enable the Investor to sell Units, and (x) Investors have no right to require the registration of the Shares will not Units under the Securities Act or state securities laws or other applicable securities regulations.
(d) The Investor is aware and acknowledges that (i) the Units involve a substantial degree of risk and there is no assurance of any income from such investment, (ii) any federal and/or state income tax benefits that may be available for at least one to the Investor may be lost through the adoption of new laws or regulations or changes to existing laws and regulations or changes in the interpretation of existing laws and regulations, (1iii) yearthe Investor, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfiedin making his investment, andis relying, if Rule 144 should become availableat all, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance solely upon the advice of his personal tax advisor with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation respect to the undersigned to register the Shares or to comply with the conditions tax aspects of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company Fund, and (iv) because there are substantial restrictions on the transferability of the Units, it may not be possible for the undersigned to liquidate his investment readily in case of an emergency, or at all.
(e) All information provided to the Manager as to net worth and annual income or assets of the Investor and the other information about the Investor are true, correct and complete in all material respects. In connection with any reinvestments, investor agrees to advise the Fund if his/her accredited status changes. Further, at the time of reinvestment, Investor reaffirms and agrees to all of the terms of this subscription agreement and reaffirms all warranties contained herein, as evidenced by such reinvestment.
(f) The Investor is at least 21 years of age and the Investor has adequate means of providing for all his current and foreseeable needs and personal contingencies and has done sono need for liquidity in this investment, to and if the extent the undersigned considers necessaryInvestor is an unincorporated association, all of its members who are U.S. Persons are at least 21 years of age.
k. (g) The Investor acknowledges has evaluated the risks of investing in the Units, and has determined that the Units are a suitable investment for the Investor. The Investor can bear the economic risk of this investment and can afford a complete loss of his investment. In evaluating the suitability of an investment in the Units, the Investor has not relied upon any representations or other information (whether oral or written) other than as set forth in the Memorandum and Exhibits thereto, and independent investigations made by the Investor or representative(s) of the Investor.
(h) The Investor is knowledgeable and experienced in evaluating investments and experienced in financial and business matters and is aware capable of evaluating the merits and risks of investing in the Units. The aggregate amount of the following:investments of the Investor in, and his commitments to, all similar investments that are illiquid is reasonable in relation to his net worth.
(i) that The Investor maintains his domicile, and is not merely a transient or temporary resident, at the Shares are a speculative investment and involve a high degree residence address shown on the signature page of risk of loss by the Investor of the Investor's entire investment in the Company;this Agreement.
(iij) that there is no guarantee Any information that the Investor will realize any gain from his has heretofore furnished to the Fund or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends Manager with respect to the Shares;Investor is correct and complete as of the date of this Agreement and if there should be any material change in such information prior to the purchase of Units the Investor shall immediately furnish such revised or corrected information to the Fund.
(ivk) that there has never been any representationThe representations, guarantee or warranty warranties, agreements, undertakings and acknowledgments made to by the Investor in this Agreement are made with the intent that they be relied upon by any broker, the Company, its agents or employees or any other person, expressly or by implication, Fund and the Manager in determining the Investor’s suitability as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner a purchaser of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the CompanyUnits, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;and shall survive the
Appears in 1 contract
Samples: Subscription Agreement (IMH Secured Loan Fund, LLC)
Representations and Warranties of the Investor. In order to induce The Investor understands that the Company to accept this AgreementNotes are being issued in reliance upon the exemptions provided in the Securities Act of 1933 (the “Securities Act”) and/or Regulation D thereunder for transactions involving limited offers and sales, and the Investor hereby represents Investor, for himself and warrants for his heirs, personal representatives, successors and assigns, makes the following representations, declarations and warranties to the Company with the intent that the same may be relied upon in determining the suitability of the undersigned as followsan investor in the Notes:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. (a) The Investor (i) has no need for liquidity in received, read carefully and understands the investment in the SharesNote Document, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, all exhibits thereto and the Investor SEC Filings and has no present intention of changing such residence to any other state consulted his own attorney, accountant or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining investment advisor with respect to the investment in contemplated hereby and its suitability for the Investor.
(b) The Company reasonably requested by the Investor have been has made available to the Investor. The undersigned has relied only on such documents , during the course of this transaction and prior to the purchase of the Notes, the opportunity to ask questions of and receive answers from the Company concerning the terms and conditions of the offering and the business of the Company, and to obtain any additional information necessary to verify the information contained in the Note Document, all exhibits thereto and the SEC Filings or otherwise relative to the financial data and business of the Company, to the extent that no written or oral representation or information inconsistent with the Company possesses such information has or can acquire it without unreasonable effort or expense, and all such questions, if asked, have been made or furnished answered satisfactorily and all such documents, if examined, have been found to the Investor in connection with the Shares and if so made, has not been relied uponbe fully satisfactory.
e. (c) The Investor understands and acknowledges that (i) the Shares Investor must bear the economic risk of his investment in the Notes for an extended period of time, (ii) the Notes have not been registered under the Securities Act, nor pursuant to the provisions of the Act or any state securities laws or other laws of any other applicable jurisdictions, and are being offered and sold in reliance on upon exemptions for private offerings contained provided in the Securities Act and in the state securities laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have transactions not been registered under the Securities Act, involving any public offering and, therefore, cannot be offered resold or sold transferred unless they are subsequently registered under the Securities Act and applicable state laws or unless an exemption from such registration is available. The , (iii) the Investor further understands is purchasing the Notes for investment purposes only for the account of the Investor and not with any view toward a distribution thereof, (iv) the Investor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person or anyone else any of the Notes that the Company has no intention and is under no obligation Investor hereby subscribes to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) purchase or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933part thereof, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any such contract, undertaking, agreement or arrangement relating to any resale or other distribution of arrangement, (v) the Shares.
h. The Investor understands that this Subscription may the Notes cannot be accepted sold or rejected in whole or in part in transferred without the sole and absolute discretion prior written consent of the Company, and this Agreement(vi) there will be no public market for the Notes, unless properly revoked before the completion (vii) any disposition of the sale of the Shares Notes may result in unfavorable tax consequences to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if (viii) the Company becomes a "reporting company" does not have any obligation or intention to register the Notes for sale under the Securities Exchange Act Act, any state securities laws or of 1934, as amended, supplying the provisions information that may be necessary to enable the Investor to sell Notes and (ix) Investors have no right to require the registration of Rule 144 promulgated the Notes under the Securities Act permitting resales of the Shares will not be available for at least one or state securities laws or other applicable securities regulations.
(1d) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
and acknowledges that (i) that the Shares are a speculative investment and Notes involve a high substantial degree of risk of loss of the Investor’s entire investment and there is no assurance of any income from such investment, (ii) the Investor, in making his investment, is relying, if at all, solely upon the advice of his personal advisors with respect to an investment in the Notes and (iii) because there are substantial restrictions on the transferability of the Notes, it may not be possible for the undersigned to liquidate his investment readily in case of an emergency.
(e) All information provided to the Company as to net worth and annual income or assets of the Investor and the other information about the Investor are true, correct and complete in all material respects.
(f) The Investor is at least 21 years of age and the Investor has adequate means of providing for all his current and foreseeable needs and personal contingencies and has no need for liquidity in this investment.
(g) The Investor has evaluated the risks of investing in the Notes and has determined that the Notes are a suitable investment for the Investor. The Investor can bear the economic risk of this investment and can afford a complete loss of his investment. In evaluating the suitability of an investment in the Notes, the Investor has not relied upon any representations or other information (whether oral or written) other than as set forth in the Note Document and the SEC Filings and independent investigations made by the Investor or representative(s) of the Investor's entire investment .
(h) The Investor is knowledgeable and experienced in evaluating investments and experienced in financial and business matters and is capable of evaluating the merits and risks of investing in the Company;Notes. The aggregate amount of the investments of the Investor in, and his commitments to, all similar investments that are illiquid is reasonable in relation to his net worth.
(iii) that there The Investor maintains his domicile, and is no guarantee not merely a transient or temporary resident, at the residence address shown on the signature page of this Subscription Agreement.
(j) Any information that the Investor will realize any gain from his or her investment in has heretofore furnished to the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;Investor is correct and complete as of the date of this Agreement and if there should be any material change in such information prior to its purchase of the Notes, the Investor shall immediately furnish such revised or corrected information to the Company.
(ivk) The representations, warranties, agreements, undertakings and acknowledgments made by the Investor in this Agreement are made with the intent that there has never been they be relied upon by the Company in determining his suitability as a purchaser of the Notes and shall survive its purchase. In addition, the Investor undertakes to notify the Company immediately of any change in any representation, guarantee warranty or warranty made other information relating to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:set forth herein.
(Al) The investor is a United States citizen if an individual, and if an entity is organized under the approximate or exact length of time that the Investor will be required to remain as owner laws of the Shares; or
(B) the past performance United States or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;a state thereof.
Appears in 1 contract
Samples: Subscription Agreement (PRB Gas Transportation, Inc.)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the Each Investor hereby represents and warrants to the Company as followsof the date of this Agreement that:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY(a) The Investor has full right, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTORpower and authority to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYThis Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFexcept as enforceability may be limited by applicable bankruptcy, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYinsolvency, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDreorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
b. (b) The Investor (i) has no need for liquidity Investor, in the investment in connection with its decision to purchase the Shares, (ii) is able relied only upon the Base Prospectus, the Prospectus Supplement, the Incorporated Documents, and any representations and warranties of the Company contained herein and understands that no person has been authorized to bear give any information or to make any representations that were not contained in such documents, and Investor has not relied on any such other information or representations in making a decision to purchase the substantial economic risks of Shares. Investor understands that an investment in the Shares Company involves a high degree of risk for an indefinite periodthe reasons, and (iii) at among others, set forth under the present time, could afford the complete loss of such investment caption “Risk Factors” in the SharesBase Prospectus, the Prospectus Supplement and the Incorporated Documents.
c. (c) The address set forth at Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the end United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares in any jurisdiction outside the United States where action for that purpose is required.
(d) The Investor understands that nothing in this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to or any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished materials presented to the Investor in connection with the Shares purchase and if so made, has not been relied upon.
e. The Investor understands that sale of the Shares have not been registered under the Securities Actconstitutes legal, nor pursuant to the provisions of the securities laws tax or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictionsinvestment advice. The Investor represents to the Company that he is an “accredited investor”has consulted such legal, tax and investment advisors as such term is defined it, in Rule 501(a) of Regulation D under the Securities Act of 1933its sole discretion, as amended. The Investor is fully aware that the Shares to which he has deemed necessary or she is subscribing are to be sold appropriate in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register connection with its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution purchase of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Samples: Common Stock Purchase Agreement (U.S. Auto Parts Network, Inc.)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY3.01 The Investor is an “accredited investor” within the meaning of Rule 501 of Regulation D under the Securities Act, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDand was not organized for the specific purpose of acquiring the Preferred Shares.
b. 3.02 The Investor (i) has sufficient knowledge and experience in investing in companies similar to the Company so as to be able to evaluate the risks and merits of its investment in the Company and it is able financially to bear the risks thereof.
3.03 The Investor has adequate means of providing for its current financial needs and possible contingencies that may face it and has no need for liquidity in the its investment in the Shares, (ii) Company.
3.04 It is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford intention that the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested Preferred Shares being purchased by the Investor have been made available are being acquired for investment and not with a present view to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor for sale in connection with any distribution thereof. Investor further represents that the Investor does not presently have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or any third person with respect to the Preferred Shares and if so made, has not been relied uponor the Note.
e. 3.05 The Investor understands that (i) the Preferred Shares, the Note and the Conversion Shares have not been registered under the Securities Act, nor pursuant to Act by reason of their issuance in a transaction exempt from the provisions registration requirements of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents pursuant to the Company that he is an “accredited investor”, as such term is defined in Section 4(2) thereof or Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he 505 or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered 506 promulgated under the Securities Act, and(ii) the Preferred Shares, thereforeNote and upon conversion thereof, cannot the Conversion Shares must be offered or sold held indefinitely unless they are subsequently a subsequent disposition thereof is registered under the Securities Act or an exemption is exempt from such registration is availableregistration, (iii) the Note, Preferred Shares, and Conversion Shares will bear a legend to such effect, and (iv) the Company will make a notation on its transfer books to such effect. The Investor further understands acknowledges that the Company has no intention and if an exemption from registration is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale and the holding period for the Preferred Shares or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor theretoConversion Shares.
f. 3.06 The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale has full corporate or other distribution of the Shares; power and the Investor has no present plans authority to enter into any contractand to perform this Agreement and the Other Transaction Documents in accordance with their respective terms. The Transaction Documents, undertakingwhen duly executed and delivered by Investor, agreement or arrangement relating to any resale or other distribution will constitute valid and legally binding obligations of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and enforceable in accordance with the their terms except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, other laws of general application affecting enforcement of creditors’ rights generally, and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation as limited by laws relating to the undersigned to register the Shares availability of specific performance, injunctive relief or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registrationequitable remedies.
j. 3.07 The execution by the Investor has been advised to consult with of this Agreement and the Investor’s own attorney regarding legal, taxOther Transaction Documents, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss performance by the Investor of the transactions contemplated by this Agreement and the Other Transaction Documents, do not conflict with or result in any breach of any terms, conditions or provisions of, or constitute a default under, its articles of incorporation, by-laws, or other organizational document, as applicable, or any indenture, lease, agreement, order, judgment or other instrument to which the Investor is a party, except for such breaches or defaults as would not have a material adverse effect on the Investor's entire investment .
3.08 The Investor has had an opportunity to ask questions and receive answers relating to such matters, including, but not limited to, those matters set forth herein and in the Other Transaction Documents. The Investor acknowledges that, as of the date hereof, no public market exists for any of the securities issued by the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company , and that the Investor may lose his or her entire investment;
(iii) that the Company has made no current plan or intention to issue dividends with respect to assurances that a public market will ever exist for the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Preferred Shares or any such other securities, or of the overall business of the Company;Conversion Shares.
Appears in 1 contract
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (i) has no need for liquidity sufficient knowledge and experience in financial and business matters to be capable of evaluating the investment in the Shares, (ii) is able to bear the substantial economic merits and risks of an unregistered, non-liquid, high-risk investment such as an investment in the Shares for an indefinite period, Company and any securities acquired upon the exercise or exchange of the Pre-Paid Warrants (iiithe “Securities”) at and has evaluated the present time, could afford the complete loss merits and risks of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investoran investment. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares offer and sale of the Pre-Paid Warrants and the Securities has not been approved or disapproved by the United States Securities and Exchange Commission, or any other federal or state office or agency. The Investor acknowledges that there is no public market for the Pre-Paid Warrants and Securities, and none is likely to develop.
b. In purchasing the Pre-Paid Warrants, the Investor is not relying upon any information, other than that contained in this Agreement and the results of its own independent investigation. The Investor has had an opportunity to ask questions of and receive answers from the Company and its officers concerning the terms and conditions of the purchase of the Pre-Paid Warrants, the proposed operations of the Company and the risks thereof, and all such questions have been answered to the full satisfaction of the Investor. The Investor has relied on its own professional advisors with regard to the tax and other economic considerations relating to the purchase of the Pre-Paid Warrants and the Securities.
c. The Investor understands that (a) the Pre-Paid Warrants and the Securities have not been or will not be registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the United States Securities Act of 1933, as amendedamended (the “Securities Act”), (b) such Pre-Paid Warrants and the Securities are being offered in reliance upon an exemption from the registration requirements of the Securities Act for transactions by an issuer not involving any public offering and (c) the Investor will have no right to require such registration. In addition, the Investor understands that it may not sell or transfer the Pre-Paid Warrants and/or the Securities except in compliance with the registration requirement of the Securities Act or pursuant to an applicable exemption therefrom and then, only in accordance with the terms of the Operating Agreement.
d. The Investor is acquiring its Pre-Paid Warrants and the Securities for its own account, for investment purposes only, and not with a view to the sale or other distribution thereof, in whole or in part. The Investor is fully aware that there are substantial restrictions on the Shares to which he or she is subscribing are to transferability of the Pre-Paid Warrants and the Securities and there will be sold in reliance upon such exemptions based upon his or her representations, warranties no public market for the Pre-Paid Warrants and agreements set forth in this Agreementthe Securities. The Investor is fully aware that he or she must Investor, therefore, may have to bear the economic risk risks of his or her its investment in the Company for an indefinite period of time because time. The Investor acknowledges that it has sufficient liquid assets and is capable of bearing a complete loss of its Purchase Price.
e. This Agreement, when duly executed and delivered, will constitute the Shares have valid and binding agreements of the Investor, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights and general principles of equity.
f. The Investor is not subject to or obligated under any law, rule or regulation of any governmental authority, material agreement, instrument, license, franchise or permit, or subject to any writ, injunction or decree that would be breached or violated by its execution, delivery and performance of this Agreement.
g. The Investor, if a company, partnership, trust or other entity, is duly authorized and qualified to become a stockholder in, and authorized to make its capital contributions to, the Company, and the individual or individuals signing this Agreement and giving these representations and warranties, as the case may be, on behalf of the Investor has been registered under the Securities Act, duly authorized by us to do so and, thereforethe making of such contribution or signing of this Agreement will not conflict with any agreement to which it is a party or violate its governing instrument or violate any applicable governing laws.
h. Within five days after receipt of a request from the Company, cannot the Investor hereby agrees to provide such information with respect to its status as a stockholder (or potential stockholder) and to execute and deliver such documents as may reasonably be offered necessary to comply with any and all laws and regulations to which the Company is or sold unless they are subsequently registered under may become subject, including, without limitation, the Securities Act or an exemption from such registration is availableneed to determine the accredited status of the Company’s stockholders. The Investor further understands agrees that in the event it transfers the Pre-Paid Warrants and/or any Securities, it will require the transferee of such Pre-Paid Warrants and/or any Securities to agree to provide such information to the Company has no intention as a condition of such transfer.
i. The Investor maintains the Investor’s domicile (and is under no obligation to register its Shares under not a transient or temporary resident) at the Securities Act or to comply with address shown on the requirements for any exemption signature page.
j. The Investor represents that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 it is an “accredited investor” as that term is defined in Regulation D promulgated under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, which are known to and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with understood by the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company ) and has done so, to completed the extent the undersigned considers necessary.
k. The Accredited Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, Questionnaire attached hereto as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;Exhibit C.
Appears in 1 contract
Samples: Subscription Agreement (Energy Hunter Resources, Inc.)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as followsand the Placement Agents that:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. 6.1 The Investor is (ia) has no need for liquidity an accredited investor within the meaning of Rule 501 of Regulation D promulgated under the Securities Act and/or a Qualified Institutional Buyer, or QIBs, as defined in Rule 144A under the investment in the SharesSecurities Act, (iib) aware that the sale of the Securities to it is able to bear being made in reliance on a private placement exemption from registration under the substantial economic risks of an investment in the Shares for an indefinite period, Securities Act and (iiic) at acquiring the present timeSecurities for its own account or for the account of a QIB or an accredited investor and not with a view to or for distributing or reselling the Securities or any part thereof in violation of the Securities Act or any other applicable securities law, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to distributing any of the Securities in violation of the Securities Act or any other state applicable securities law and has no direct or jurisdictionindirect arrangement or understandings with any other persons to distribute or regarding the distribution of the Securities in violation of the Securities Act or any other applicable securities law (this representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with applicable securities laws).
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. 6.2 The Investor understands and agrees on behalf of itself and, if applicable, on behalf of any investor account for which it is purchasing Securities, and each subsequent holder of Securities by its acceptance thereof will be deemed to agree, that the Shares have Securities are being offered in a transaction not been registered under involving any public offering within the meaning of the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in that the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, canand will not be offered or sold unless they are subsequently registered under the Securities Act and that (a) if it decides to offer, resell, pledge or otherwise transfer any of the Securities, such Securities may be offered, resold, pledged or otherwise transferred only (i) to a person who the seller reasonably believes is a QIB in a transaction meeting the requirements of Rule 144A, (ii) pursuant to an exemption from such the registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under requirements of the Securities Act or to comply with Act, including the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under provided by Rule 144 under the Securities Act (which it understands is not nowif available), (iii) pursuant to an effective registration statement under the Securities Act, or (iv) to the Company, or one of its subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities laws of any state of the United States, and will not likely bethat (b) the Investor will, available) or and each subsequent holder is required to, notify any rule subsequent purchaser of the Securities from it of the resale restrictions referred to in (a) above and Exchange Commission or will provide the Company and the transfer agent such certificates and other information as they may reasonably require to confirm that any successor theretotransfer by such Investor of any Securities complies with the foregoing restrictions, if applicable.
f. 6.3 The Investor understands that the certificate(s) representing Securities, unless sold in compliance with Rule 144 under the Shares Securities Act, will bear a legend substantially to the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY effect:
6.4 THIS CERTIFICATE HAVE NOT BEEN REGISTERED SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT ), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON AN EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT") IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO THIS CLAUSE (II) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM THAT ANY SUCH EXEMPTION IS AVAILABLE TO THE HOLDER, (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT OF THE UNITED STATES, AND NOT WITH A VIEW (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLDIN (A) ABOVE.
6.5 The Investor:
(a) is able to fend for itself in the transactions contemplated by the Private Placement Memorandum referred to herein;
(b) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Securities, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”and has so evaluated the merits and risks of such investment; and
g. The Shares are being acquired solely for (c) has the Investor's own account, for ability to bear the economic risks of its prospective investment and are can afford the complete loss of such investment.
6.6 The Investor has received a copy of the Private Placement Memorandum and acknowledges that (a) it has conducted its own investigation of the Company and the terms of the Securities and, in conducting its examination, it has not being purchased with a view to relied on the Placement Agents or for the resale on any statements or other distribution information provided by the Placement Agents concerning the Company or the terms of this offering, (b) it has had access to the Company’s Exchange Act Filings and such financial and other information as it has deemed necessary to make its decision to purchase the Securities, and (c) has been offered the opportunity to ask questions of the Shares; Company and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934received answers thereto, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions it has deemed necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. the decision to purchase the Securities.
6.7 The Investor understands that the Company, the Placement Agents and others will rely upon the truth and accuracy of the representations, acknowledgements and agreements of the Investor contained herein and agrees that if any of the representations and acknowledgements deemed to have been made by it or by its purchase of the Securities is no longer accurate, the Investor shall promptly notify the Company and the Placement Agents. If the Investor is under acquiring Securities as a fiduciary or agent for one or more QIB investor accounts, it represents that it has sole investment discretion with respect to each such account, and it has full power to make the foregoing representations, acknowledgements and agreements on behalf of such account.
6.8 The Investor acknowledges that the Placement Agents and its directors, officers, employees, representatives and controlling persons have no obligation responsibility for making any independent investigation of the information contained in the Private Placement Memorandum and make no representation or warranty to the undersigned Investor, express or implied, with respect to register the Shares Company or the Securities or the accuracy, completeness or adequacy of the Private Placement Memorandum or any publicly available information, nor shall any of the foregoing persons be liable for any loss or damages of any kind resulting from the use of the information contained therein or otherwise supplied to the Investor.
6.9 The Investor acknowledges that (a) such Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement, and (b) no action has been or will be taken in any jurisdiction by the Company or the Placement Agents that would permit an offering of the Securities, or possession or distribution of offering materials in connection with the issue of the Securities (including any filing of a registration statement), in any jurisdiction where action for that purpose is required, and that such Investor will comply with the conditions of Rule 144 all applicable laws and regulations in each jurisdiction in which it purchases, offers, sells or take any other action necessary in order to make available any exemption for the sale of the Shares without registrationdelivers Securities.
j. 6.10 The Investor has been advised full right, power, authority and capacity to consult with enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and this Agreement constitutes a valid, binding, and enforceable obligation of the Investor’s own attorney regarding legal, taxexcept as the enforceability of the Agreement may be subject to or limited by bankruptcy, and insolvency, reorganization, arrangement, moratorium, other matters concerning an investment in similar laws relating to or affecting the Company and has done so, to the extent the undersigned considers necessaryrights of creditors generally.
k. 6.11 The entry into and performance of this Agreement by the Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss consummation by the Investor of the transactions contemplated hereby will not (i) result in a violation of the organizational documents of the Investor's entire , (ii) conflict with, or constitute a default under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Investor is a party, or (iii) result in the violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to the Investor, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Investor to perform its obligations hereunder.
6.12 The Investor understands that nothing in the Private Placement Memorandum, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Notes constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Notes and has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;Notes.
Appears in 1 contract
Representations and Warranties of the Investor. In The undersigned, in order to induce the Company to accept this AgreementOffer, the Investor hereby warrants and represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED(A) The undersigned has sufficient liquid assets to sustain a loss of the undersigned's entire investment.
b. (B) The Company has not made any other representations or warranties to the Investor with respect to the Company except as contained herein. The Company has not rendered any investment advice to the Investor with respect to the Company.
(C) The Investor understands that the Securities involve a high degree of risk and represents that the Investor (i) has adequate means of providing for its current financial needs and possible contingencies, and has no need for liquidity in the of investment in the Shares, Securities; (ii) can afford (a) to hold unregistered securities for an indefinite period of time as required and (b) sustain a complete loss of the entire amount of the subscription; and (iii) has not made an overall commitment to investments which are not readily marketable which is able disproportionate so as to bear cause such overall commitment to become excessive.
(D) The undersigned has carefully reviewed the substantial economic Information Statement. The undersigned has also been afforded the opportunity to ask questions of, and receive answers from, the officers and/or directors of the Company concerning the terms and conditions of the Offering and to obtain any additional information, to the extent that the Company possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of the information furnished; and has availed itself of such opportunity to the extent the Investor considers appropriate in order to permit it to evaluate the merits and risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement Securities. It is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms understood that all documents, records and books pertaining to the this investment in the Company reasonably requested by the Investor have been made available to for inspection, and that the Investor. books and records of the Company will be available upon reasonable notice for inspection by investors during reasonable business hours at its principal place of business.
(E) The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands acknowledges that the Securities including Underlying Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, Act in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor for transactions by an issuer not involving a public offering, and further understands that the Company has no intention and Investor is under no obligation purchasing the Securities without being furnished any prospectus setting forth all of the information that would be required to register its Shares be furnished under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor theretoAct.
f. (F) The Investor understands undersigned further acknowledges that this Offering has not been passed upon or the certificate(smerits thereof endorsed or approved by any state or federal authorities.
(G) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares Securities being subscribed for are being acquired solely for the Investor's own account, for investment account of the undersigned and are not being purchased with a view to to, or for resale in connection with, any distribution in any jurisdiction where such sale or distribution would be precluded. By such representation, the resale Investor means that no other person has a beneficial interest in the Securities (or Underlying Shares) subscribed for hereunder, and that no other distribution person has furnished or will furnish directly or indirectly, any part of or guarantee the payment of any part of the Shares; and consideration to be paid to the Investor has no present plans Company in connection therewith. The undersigned does not intend to enter into dispose of all or any contract, undertaking, agreement or arrangement relating to any resale or other distribution part of the Shares.
h. The Investor understands that this Subscription may be accepted Securities (or rejected in whole Warrant or in part in the sole and absolute discretion Common Stock issuable upon any exercise of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, Warrant) except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, compliance with the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts applicable state securities laws and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is Securities are being offered pursuant to a specific exemption under no obligation to the provisions of the Act, which exemption(s) depends, among other things, upon compliance with the provisions of the Act.
(H) The undersigned further represents and agrees that the undersigned will not sell, transfer, pledge or otherwise dispose of or encumber the Securities (including the Underlying Shares) prior to register registration, or the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legalundersigned will, taxif requested, and other matters concerning an investment in furnish the Company and has done so, its transfer agent with an opinion of counsel satisfactory to the extent Company in form and substance that registration under the undersigned considers necessaryAct or applicable state securities laws is not required.
k. (I) The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) undersigned hereby agrees that the Company has no current plan may insert the following or intention to issue dividends similar legend on the face of the certificates evidencing the Securities and the Underlying Shares, if required in compliance with federal and state securities laws: "These securities have not been registered under Act or under the securities laws of any state. They may not be sold, offered for sale, pledged or hypothecated in the absence of a registration statement in effect with respect to the Shares;securities under such act or an opinion of counsel reasonably satisfactory to the company that such registration is not required pursuant to a valid exemption under the Act.”
(ivJ) that there Neither the Company nor any person acting on its behalf has never been offered or sold the undersigned the Securities by means of any representation, guarantee form of general solicitation or warranty made general advertising and the Securities were not offered or sold to the Investor by any broker, means of publicly disseminated advertisements or sales literature. The undersigned certifies that each of the Company, its agents or employees or any other person, expressly or by implication, as to:
foregoing representations and warranties set forth in subsection (A) the approximate or exact length through (J) inclusive of time that the Investor will be required to remain this Section 4 are true as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any date hereof and shall survive such other securities, or of the overall business of the Company;date.
Appears in 1 contract
Samples: Subscription Agreement (Simtrol Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED(a) The Investor is a Permitted Transferee of the Euradius Investors.
b. (b) The Investor (i) is a private limited liability company duly organized, validly existing, and in good standing under the laws of the Netherlands and has no all requisite power and authority to execute this Joinder and to perform its obligations hereunder without the need for liquidity in the investment in the Shares, consent of any other person (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of other than such investment in the Sharesconsents as have heretofore been obtained).
c. The address set forth at the end of this Agreement is the Investor's true (c) This Joinder has been duly authorized by all necessary action, has been duly executed and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested delivered by the Investor have been made available and constitutes the legal, valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms.
(d) No action, suit, proceeding or investigation is pending or, to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent ’s knowledge, threatened, against the Investor with such information has been made or furnished respect to the execution and delivery of this Joinder or the consummation by the Investor in connection with of the Shares and if so made, has not been relied upontransactions contemplated hereby.
e. (e) The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, ” as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended.
(f) The Investor is acquiring the Transferred Interest for its own account for investment purposes only and not with a view to any further resale or distribution of the Transferred Interest that would violate the Securities Act of 1933, as amended (the “Securities Act”) or the applicable state securities laws of any state. The Investor is fully aware that will not distribute the Shares to which he Transferred Interest in violation of the Securities Act or she is subscribing are the applicable securities laws of any state.
(g) The Investor has sufficient investment experience as to be sold able to understand the merits and risks of an investment in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreementthe Company. The Investor is fully aware that he or she must bear understands the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have Transferred Interest has not been registered under the Securities ActAct or applicable state securities laws, and, therefore, cannot must be offered or sold held indefinitely unless they are subsequently registered under the Securities Act and any applicable state securities laws or unless an exemption from such registration becomes or is available. The Investor further understands that available and may not be sold or transferred without the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales consent of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. (h) The Investor understands that even if the Company becomes has received a "reporting company" under copy of and has had an opportunity to review the Securities Exchange Act of 1934, as amended, Holders Agreement and the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the RuleRegistration Rights Agreement. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some has also received or has been afforded access to such other exemption from registration will be requiredinformation concerning the Company and its business as the Investor has deemed necessary to make an informed investment decision. The Investor understands that has had an opportunity to ask questions and receive answers to any questions Investor may have to be able to evaluate the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions merits and risks of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessaryCompany.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as followsCorporation that:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. (a) The Investor (i) has no need for liquidity is acquiring the Convertible Debenture, and, in the investment in event an Investor should acquire Reserved Shares upon conversion of the Convertible Debenture, such Investor will be acquiring the Reserved Shares, (ii) is able for its own account, for investment and not for, with a view to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upondistribution thereof.
e. (b) The Investor understands that neither the Convertible Debenture nor the Reserved Shares have not been registered under the Securities ActAct or any state securities law, nor pursuant to by reason of their issuance in a transaction exempt from the provisions registration requirements of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”laws, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware and that the Convertible Debenture and the Reserved Shares to which he or she is subscribing are to must be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold held indefinitely unless they are subsequently registered under the Securities Act and such laws or an exemption a subsequent disposition thereof is exempt from such registration is availableregistration. The Convertible Debenture and any Reserved Shares issued upon conversion shall bear a legend to such effect.
(c) The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under from registration afforded by Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of promulgated by the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that (the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACTCommission") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales depends upon the satisfaction of various conditions and that, if applicable, Rule 144 affords the basis for sales only in limited amounts.
(d) The Investor (i) has sufficient knowledge and experience in business and financial matters and with respect to investment in securities of companies comparable to the Corporation so as to enable it to analyze and evaluate the merits and risks of the Shares will not be available for at least one investment contemplated hereby and (ii) is able to bear the economic risk of such investment. The Investor is an "accredited investor" with the meaning of Regulation D under the Securities Act.
(e) The Investor and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of the Corporation and materials relating to the offer and sale of the Convertible Debenture which have been requested by the Investor. The Investor and its advisors, if any, have been afforded the opportunity to ask questions of the Corporation and have received complete and satisfactory answers to any such inquiries. Without limiting the generality of the foregoing, the Investor has also had the opportunity to obtain and to review the Corporation's (1) yearRegistration Statement on Form 10-SB filed on September 28, 1998 as amended; (2) Quarterly Reports on Form 10-QSB for the fiscal quarters ended August 31, 1998, November 30, 1998 and there can be no assurance that February 28, 1999; (3) Form 8-K filed August 12, 1999; Annual Report on Form 10-KSB for the conditions necessary to permit routine sales fiscal year ended May 31, 1999; (4) the Corporation's Proxy Statement for its Annual Meeting of Stockholders held February 9, 1999 and (5) Form 10-KSB for the fiscal year ended May 31, 1999.
(f) This Agreement has been duly and validly authorized, executed and delivered on behalf of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts Investor and is a valid and binding agreement of the Investor enforceable in accordance with the terms its terms, subject as to enforceability to general principles of equity and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not availableto bankruptcy, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legalinsolvency, tax, moratorium and other matters concerning an investment in similar laws affecting the Company and has done so, to the extent the undersigned considers necessaryenforcement of creditors' rights generally.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Samples: Convertible Subordinated Debenture Purchase Agreement (Mdi Entertainment Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company, and acknowledges that the Company is entering into this Agreement in reliance thereon, as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY4.1 This Agreement, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYwhen executed and delivered by the Investor, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFconstitutes a valid, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYbinding, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDand enforceable obligation of the Investor.
b. 4.2 The Investor (i) has no need for liquidity in is public company which shares are traded on the investment in TASE and the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite periodNasdaq, and (iii) at it is duly organized, and validly existing under the present timelaws of the State of Israel, could afford and has all requisite power and authority to carry out the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residencetransaction contemplated hereby, and the execution, delivery, and performance of the obligations of the Investor has no present intention of changing such residence to any other state or jurisdictionhereunder have been duly authorized by all necessary corporate action.
d. 4.3 The Investor confirms that all documents, records and books pertaining to owns approximately 58% of the investment in outstanding share capital of the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied uponCompany.
e. 4.4 The Investor understands understands, acknowledges and agrees that the Purchased Shares have not been registered under the securities laws of any jurisdiction, and may not be transferred without such registration or an exemption therefrom. Until registered under the Securities Act or otherwise permitted under the Securities Act, nor pursuant to the provisions all certificates evidencing any of the Purchased Shares shall bear a legend, prominently stamped or printed thereon, reading substantially as follows: “The securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D represented by this certificate have not been registered under the Securities Act of 1933, as amendedamended (the “Securities Act”) or applicable State securities laws. The Investor is fully aware that the Shares These securities have been acquired for investment and not with a view to which he distribution or she is subscribing are to resale, and may not be sold in reliance upon or otherwise transferred without an effective registration statement for such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered securities under the Securities Act and applicable State securities laws, or the availability of an exemption from such the registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under provisions of the Securities Act or to comply with and applicable State securities laws”.
4.5 The execution and delivery of this Agreement and the requirements for consummation of the transaction herein contemplated will not (i) result in any exemption that might otherwise be availableconflict with, breach of, or default (or give rise to supply any right of termination, cancellation or acceleration or the loss of any benefit) under any of the terms, conditions or provisions of the Investor’s organizational documents or of any material agreement, permit or other instrument or obligation to which the Investor with is a party or is bound, or (ii) violate any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not nowlaw or regulation, and will not likely be, available) or any rule order, injunction, or judgment of the Securities and Exchange Commission any court or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933governmental bureau or agency, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to domestic or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares foreign applicable to the Investor, shall survive the Investor’s death, disability . No consent or insolvency, except that the Investor shall have no obligations in the event that this Subscription approval by any governmental authority or any third party is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that required in connection with sales the execution by the Investor of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that this Agreement or the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss consummation by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his transaction contemplated hereby except for such actions, consents or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect approvals as have been obtained prior to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length execution of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;this Agreement.
Appears in 1 contract
Samples: Share Issuance Agreement (Sapiens International Corp N V)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the 3.1 Certain Representations and Warranties The Investor hereby represents and warrants to the Company Offerors as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY(a) It is acquiring the Preferred Securities for its own account for investment and not with a view towards the resale, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYtransfer or distribution thereof, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFnor with any present intention of distributing the Preferred Securities, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYbut subject, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDnevertheless, to any requirement of law that the disposition of the Investor's property shall at all times be within the Investor's control, and without prejudice to the Investor's right at all times to sell or otherwise dispose of all or any part of such securities under a registration under the Securities Act or under an exemption from said registration available under the Securities Act.
b. The (b) It has full power and legal right to execute and deliver this Agreement and to perform its obligations hereunder.
(c) It has taken all action necessary for the authorization, execution, delivery, and performance of this Agreement and its obligations hereunder, and, upon execution and delivery by the Company, this Agreement shall constitute the valid and binding obligations of the Investor, enforceable against the Investor in accordance with its terms, except as such enforcement may be limited by Bankruptcy Exceptions.
(id) There are no claims for brokerage commissions or finder's fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement made by or on behalf of the Investor.
(e) It has no need for liquidity such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the SharesTrust and the Company as contemplated by this Agreement, (ii) and is able to bear the substantial economic risks risk of an such investment in the Shares for an indefinite period, period of time. It has been furnished access to such information and (iii) at documents as it has requested and has been afforded an opportunity to ask questions of and receive answers from representatives of the present time, could afford Company and the complete loss of such investment in Trust concerning the Shares.
c. The address set forth at the end terms and conditions of this Agreement is the Investor's true and correct residence, and the Investor has no present intention purchase of changing such residence to any other state or jurisdictionthe Preferred Securities contemplated hereby and the business and financial condition of the Company and the Trust.
d. The Investor confirms that all documents, records and books pertaining to (f) It is an "accredited investor" as such term is defined in Rule 501 under the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied uponSecurities Act.
e. The Investor understands (g) It acknowledges that the Shares Preferred Securities have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, canmay not be offered or sold unless they are subsequently registered under within the United States, except pursuant to an exemption from, or in a transaction not subject to or pursuant to, the registration requirements of the Securities Act Act. It has not offered or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not nowsold, and will not likely beoffer or sell, available) the Preferred Securities within the United States, except pursuant to an exemption from, or any rule in a transaction not subject to or pursuant to, the registration requirements of the Securities and Exchange Commission or any successor theretoAct.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Samples: Preferred Securities Purchase Agreement (Wellsford Real Properties Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants as follows to the Company as followsat the date of this Agreement and at each Closing Date and acknowledges and confirms that the Company is relying on such representations and warranties in connection with the offer, sale and issuance of the Securities to the Investor:
a. (a) THE INVESTOR HAS READ CAREFULLY KNOWLEDGE IN FINANCIAL AND UNDERSTANDS THIS AGREEMENT BUSINESS AFFAIRS, IS CAPABLE OF EVALUATING THE MERITS AND HAS CONSULTED RISKS OF AN INVESTMENT IN THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYSECURITIES, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING IS ABLE TO BEAR THE BUSINESS AND OPERATIONS ECONOMIC RISK OF SUCH INVESTMENT EVEN IF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDENTIRE INVESTMENT IS LOST;
(b) The Investor has not been provided with a prospectus, an offering memorandum or any other document in connection with its subscription for Securities and the decision to subscribe for Securities and execute this Agreement has not been based upon any verbal or written representation made by or on behalf of the Company or any employee or agent of the Company;
(c) The distribution of the Securities has not been made through, or as a result of, and is not being accompanied by, (i) a general solicitation, (ii) any advertisement including articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or (iii) any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(d) The Investor is eligible to purchase the Securities pursuant to an exemption from the prospectus requirements of Canadian Securities Laws. The Investor has completed and delivered to the Company the Canadian Investor Certificate annexed to this Schedule IV as Annex IV-1, evidencing the Investor's status and criteria for reliance on the relevant prospectus exemption under Canadian Securities Laws and: (i) confirms that it complies with the criteria for reliance on the prospectus exemption and the truth and accuracy of all statements made in such certificate as of the date of this Agreement and as of each Closing Date; (ii) understands that the Company is required to verify that the Investor satisfies the relevant criteria to qualify for the prospectus exemption; and (iii) may be required to provide additional information or documentation to evidence compliance with the prospectus exemption.
b. (e) The Investor is resident of a province of territory of Canada, and, where required, is purchasing the Securities as principal;
(f) The Investor has been independently advised as to and is aware of the resale restrictions under Canadian Securities Laws with respect to the Securities;
(g) The Investor has obtained such legal and tax advice as it considers appropriate in connection with the offer, sale and issuance of the Securities and the execution, delivery and performance by it of this Agreement and the transactions contemplated by the Transaction Documents. The Investor is not relying on the Company, its affiliates or its counsel in this regard;
(h) None of the funds that the Investor is using to purchase the Securities are to the knowledge of the Investor, proceeds obtained or derived, directly or indirectly, as a result of illegal activities;
(i) No Person has made any oral or written representations to the Investor: (i) that any Person will resell or repurchase; (ii) that any Person will refund the purchase price of the Securities; or (iii) as to the future value or price of any of the Securities;
(j) The funds representing the aggregate Purchase Price advanced by the Investor are not proceeds of crime as defined in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the “PCMLTFA”). To the Investor's knowledge none of the subscription funds to be provided by the Investor (i) has no need for liquidity in have been or will be derived from or related to any activity that is deemed criminal under the investment in the Shareslaws of Canada or any other applicable jurisdiction, or (ii) is able to bear the substantial economic risks are being tendered on behalf of an investment in the Shares for an indefinite period, and a person or entity (iiiA) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in with whom the Company reasonably requested by the Investor have would be prohibited from dealing with under applicable money laundering, terrorist financing, economic sanctions, criminal or other similar laws or regulations or (B) who has not been made available identified to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands acknowledges that the Shares have not been registered under Company may in the Securities Actfuture be required by law to disclose the Investor's name and other information relating to this Agreement and the Investor's subscription hereunder, nor on a confidential basis pursuant to the provisions of the securities laws PCMLTFA or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act or regulations and in the laws of such jurisdictions. The Investor represents to shall promptly notify the Company if the Investor discovers that he is an “accredited investor”, as such term is defined in Rule 501(a) any of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are foregoing representations ceases to be sold in reliance upon such exemptions based upon his or her representationstrue, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in to provide the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any appropriate information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registrationtherewith.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Samples: Purchase Agreement (Sphere 3D Corp)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (i) has no need for liquidity in the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, ; as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
(v) that the Company may in the future issue additional shares of capital stock in the Company, and that the Investor's interest in the Company may thereby become diluted. The Investor acknowledges that he or she understands the meaning and legal consequences of the representations, warranties and acknowledgments contained in this Agreement. The Investor confirms that such representations, warranties and acknowledgments are true and accurate as of the date of this Agreement and shall be true and accurate as of the date of delivery of the Funds to the Company and shall survive such delivery. If in any respect such representations and warranties shall not be true and accurate prior to acceptance of this Agreement pursuant to Section 2 of this Agreement, the Investor shall give written notice of such fact to the Company, specifying which representations and warranties are not true and accurate and the reasons therefor.
Appears in 1 contract
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company that: (a) it has full power and authority to enter into and perform this Agreement in accordance with its terms, and it was not organized for the specific purpose of acquiring the Securities; (b) it has sufficient knowledge and experience in investing in companies similar to the Company in terms of the Company’s stage of development so as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (i) has no need for liquidity in the investment in the Shares, (ii) is to be able to bear evaluate the substantial economic risks and merits of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the its investment in the Company reasonably requested by and it is able financially to bear the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor risks thereof; (c) in connection with the Shares acquisition of the Warrants, it has made an investigation of the Company and if so madeits business as it deemed necessary and has had an opportunity to discuss and review the Company’s business, has management and financial affairs with the Company’s management as it deemed necessary; (d) the Securities being purchased by it are being acquired for its own account for the purpose of investment and not been relied upon.
e. The Investor with a view to the public resale or distribution thereof within the meaning of the Securities Act; (e) it understands that (i) the Shares Securities have not been registered under the Securities Act, nor pursuant to Act by reason of their issuance in a transaction exempt from the provisions registration requirements of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents pursuant to the Company that he is an “accredited investor”Section 4(2) thereof or Rule 504, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he 505 or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered 506 promulgated under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered (ii) under the Securities Act or an exemption from such and applicable regulations thereunder the Securities may be resold without registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “only PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SHARES SECRETARY OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933ACT; [***] DENOTES OMISSIONS. in certain limited circumstances, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) the certificates evidencing the Securities will bear a legend substantially similar to that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as toset forth below:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Representations and Warranties of the Investor. In order to induce the Company As material inducement to accept this Agreementthe subscription, the Investor hereby represents and warrants to the Company as followsof the date hereof that:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEYA. He is an "Accredited Investor" as that term is defined under Regulation D promulgated under the United States Securities Act of 1933, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYas amended (the "Act"), OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDwhich in its definition includes in the alternative the net worth and income requirements stated in B(i) and B(ii) above.
b. The Investor (i) He can bear the economic risk of losing his entire investment; (ii) his overall commitment to investments that are not readily marketable is not disproportionate to his net worth so as to become excessive; (iii) he has adequate means of providing for his current needs and personal contingencies and has no need for liquidity in the his investment in the SharesCommon Stock; and (iv) he has substantial experience in making investment decisions of this type.
C. He has read, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite periodconsidered, and understands the Company’s filing with the Securities and Exchange Commission, including its Form 10-KSB for the period ended December 31, 2002, and Form 10-QSB for the periods ended March 31, 2003 (iii) at collectively, the present time, could afford the complete loss of such investment in the Shares“Disclosure Documents”).
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor D. He further confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor Common Stock have been made available to the Investor. The undersigned has relied only on such documents him and he acknowledges that no written or oral representation or information inconsistent with such information and the books and records of the Company will continue to be available upon reasonable notice and during normal business hours.
E. He has been made or furnished had an opportunity to ask questions of and receive answers from the Company on matters that pertain to the Investor in connection with the Shares and if so made, has not been relied uponCompany.
e. The Investor F. He understands that the Shares have investment offered hereunder has not been registered under the Securities Act, nor pursuant to and he further understands that he is purchasing the provisions Common Stock without being furnished any offering literature or prospectus, other than the Disclosure Documents. He is acquiring the Common Stock for his own account, for investment purposes only, and not with a view towards resale or distribution.
G. He is not a "US Person" which is defined below:
(a) Any natural person resident in the United States;
(b) Any partnership or corporation organized or incorporated under the laws of the securities laws United States;
(c) Any estate of which any executor or administrator is a US person;
(d) Any trust of which any trustee is a US person;
(e) Any agency or branch of a foreign entity located in the United States;
(f) Any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a US person;
(g) Any discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated, or (if an individual) resident of the United States; and
(h) Any partnership or corporation if (i) organized or incorporated under the laws of any other applicable jurisdictionsforeign jurisdiction and (ii) formed by a US person principally for the purpose of investing in securities not registered under the Act, in reliance on exemptions for private offerings contained in the Securities Act unless it is organized or incorporated, and in the laws of such jurisdictions. The Investor represents to the Company that he is an “owned, by accredited investor”, investors (as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will Act) who are not be available for at least one (1) yearnatural persons, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares estates or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registrationtrusts.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Samples: Investment Agreement (Avani International Group Inc //)
Representations and Warranties of the Investor. In order The undersigned hereby makes the following representations, warranties and agreements and confirms the following understandings:
(i) The undersigned has received a copy of the Offering Circular, has been given the opportunity to induce read and review it carefully, and has had an opportunity to question representatives of the Company to accept this Agreement, the Investor hereby represents and warrants to obtain such additional information concerning the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTORthe undersigned requested. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDAll questions of the undersigned have been satisfactorily answered prior to making this investment.
b. (ii) The Investor undersigned has sufficient experience in financial and business matters to be capable of utilizing such information to evaluate the merits and risks of the undersigned’s investment, and to make an informed decision relating thereto; or the undersigned has utilized the services of his, her or its financial advisor or other investment representative and together they have sufficient experience in financial and business matters that they are capable of utilizing such information to evaluate the merits and risks of the undersigned’s investment, and to make an informed decision relating thereto.
(iiii) The undersigned has no need for liquidity in evaluated the risks of this investment in the SharesCompany, (ii) is able to bear the substantial economic including those risks of an investment particularly described in the Shares for an indefinite periodOffering Circular, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms determined that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investoris suitable for him, her or it. The undersigned has relied only on such documents adequate financial resources for an investment of this character, and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied uponat this time could bear a complete loss of his investment.
e. (iv) The Investor undersigned understands that the Shares have are not been being registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. amended (the “Securities Act”) on the ground that the issuance thereof is exempt under Regulation A of Section 3(b) of the Securities Act (“Regulation A”), and that reliance on such exemption is predicated in part on the truth and accuracy of the undersigned’s representations and warranties, and those of the other purchasers of Shares.
(v) The Investor is fully aware undersigned understands that the Shares to which he or she are not being registered under the securities laws of certain states on the basis that the issuance thereof is subscribing exempt as an offer and sale not involving a registerable public offering in such state, since the Shares are to be sold in “covered securities” under the National Securities Market Improvement Act of 1996. The undersigned understands that reliance upon on such exemptions based upon is predicated in part on the truth and accuracy of the undersigned’s representations and warranties and those of other purchasers of Shares.
(vi) The amount of this investment by the undersigned does not exceed (a) 10% of the greater of the undersigned’s annual income or net worth not including the value of his or her representationsprimary residence (if the undersigned is a natural person) or (b) 10% of the greater of the undersigned’s annual revenue or net assets at fiscal year-end (if the undersigned is a non-natural person), warranties and agreements or (ii) the undersigned is an “accredited investor,” as that term is defined in Rule 501 of Regulation D promulgated under Section 4(a)(2) of the Securities Act of 1933, as amended, the requirements for which are set forth in the Offering Circular, or is the beneficiary of a fiduciary account, or, if the fiduciary of the account or other party is the donor of funds used by the fiduciary account to make this Agreement. investment, then such donor, who meets the requirements of net worth, annual income or criteria for being an “accredited investor.” The Investor undersigned agrees to promptly provide the Company with any information required to confirm the representations made in this Section 2(vi).
(vii) The undersigned has no need for any liquidity in this investment and is fully aware that he or she must able to bear the economic risk of his or her investment in the Company for an indefinite period of time because time. The undersigned has been advised and is aware that: (a) there is currently no public market for the Shares have and a public market for the Shares may not been registered under the Securities Actdevelop and (b) even if such application is accepted, and, therefore, canit may not be offered or sold unless they are subsequently registered under possible to readily liquidate the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of in the Shares.
h. The Investor understands that (viii) All contacts and contracts between the undersigned and the Company regarding the offer and sale to him or her of Shares have been made within the state indicated below subscriber’s signature on the signature page of this Subscription may be accepted or rejected in whole or in part in Agreement and the sole and absolute discretion undersigned is a resident of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Companysuch state.
i. (ix) The Investor understands that even if undersigned has relied solely upon the Company becomes a "reporting company" under the Securities Exchange Act of 1934Offering Circular, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in material provided by the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss independent investigations made by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from him or her or his or her investment in the Company representatives and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends advisors with respect to the Shares;
(iv) that there has never Shares subscribed for herein, and no oral or written representations beyond the Offering Circular and other material provided by the Company have been any representation, guarantee or warranty made to the Investor undersigned or relied upon by any broker, the undersigned by the Company, its agents representatives or employees assigns, or any other personperson or entity.
(x) The undersigned agrees not to transfer or assign this subscription or any interest therein.
(xi) The undersigned hereby acknowledges and agrees that, expressly except as may be specifically provided herein, the undersigned is not entitled to withdraw, terminate or revoke this subscription.
(xii) If the undersigned is a partnership, corporation, limited liability company or trust, it has been duly formed, is validly existing, has full power and authority to make this investment, and has not been formed for the specific purpose of investing in the Shares. No consent, approval, authorization or order of any court, governmental agency or body or arbitrator having jurisdiction over the undersigned or any of the undersigned’s affiliates is required for the execution of this Subscription Agreement or the performance of the undersigned’s obligations hereunder, including, without limitation, the purchase of the Shares by implicationthe undersigned. This Subscription Agreement and all other documents executed in connection with this subscription for Shares are valid, binding and enforceable agreements of the undersigned.
(xiii) The undersigned is not, nor is it acting on behalf of, a “benefit plan investor” within the meaning of 29 C.F.R. § 2510.3-101(f)(2), as to:modified by Section 3(42) of the Employee Retirement Income Security Act of 1974 (such regulation, the “Plan Asset Regulation”, and a benefit plan investor described in the Plan Asset Regulation, a “Benefit Plan Investor”).
(Axiv) The undersigned should check the Office of Foreign Assets Control (“OFAC”) website at xxxx://xxx.xxxxx.xxx/ofac before making the following representations. The undersigned represents that the amounts invested by 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 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 individuals, including specially designated nationals, specially designated narcotics traffickers and other parties subject to OFAC sanctions and embargo programs, or entities in certain countries regardless of whether such individuals or entities appear on the OFAC lists. Furthermore, to the best of the undersigned’s knowledge, none of: (1) the approximate undersigned; (2) any person controlling or exact length of time controlled by the undersigned; (3) if the undersigned is a privately-held entity, any person having a beneficial interest in the undersigned; or (4) any person for whom the undersigned 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. Please be advised that the Investor will 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 undersigned agrees to promptly notify the Company should the undersigned become aware of any change in the information set forth in these representations. The undersigned understands and acknowledges that, by law, the Company may be obligated to “freeze the account” of the undersigned, either by prohibiting additional subscriptions from the undersigned, declining any redemption requests and/or segregating the assets in the account in compliance with governmental regulations, and the Company may also be required to remain as owner report such action and to disclose the undersigned’s identity to OFAC. The undersigned further acknowledges that the Company may, by written notice to the undersigned, suspend the redemption rights, if any, of the Shares; or
(B) undersigned if the past performance Company reasonably deems it necessary to do so to comply with anti-money laundering regulations applicable to the Company or experience on the part of the officers or directors any of the Company’s other service providers. These individuals include specially designated nationals, or of any specially designated narcotics traffickers and other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;parties subject to OFAC sanctions and embargo programs.
Appears in 1 contract
Samples: Subscription Agreement (Tesseract Collective, Inc.)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as followsIssuer that:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY(a) the Investor is acquiring the Preferred Shares for its own account and not with a view to, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYor for sale in connection with, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.any distribution thereof;
b. The (b) the Investor (i) has no need for liquidity such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the investment in the Preferred Shares, ;
(iic) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention had an opportunity to ask questions of changing such residence to any other state or jurisdiction.and receive answers from representatives of the Issuer concerning the terms and conditions of the offering of the Preferred Shares;
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by (d) the Investor have been made available to has reviewed the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection Issuer’s filings with the Shares Securities and Exchange Commission, if so made, has not been relied upon.any;
e. The (e) the Investor understands that the Preferred Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act are being offered and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D sold without registration under the Securities Act of 1933, as amended. The Investor is fully aware that amended (the Shares to which he “Securities Act”), and without any state or she is subscribing are to be sold other securities law registration, in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered from registration under the Securities Act, and, therefore, canAct and applicable state and other securities laws;
(f) the Investor acknowledges that the Preferred Shares are “restricted securities” under the Securities Act and may not be offered sold or sold unless they are subsequently registered transferred except pursuant to an effective registration statement under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply Act;
(g) the Investor with any information necessary to enable the Investor to make routine sales is an “accredited investor” as that term is defined in Rule 501 of the Shares under Rule 144 Regulation D under the Securities Act Act;
(which it understands is not now, and will not likely be, availableh) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised received all information it deems necessary or appropriate to consult make an informed investment decision with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, respect to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware purchase of the following:Preferred Shares.
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor is not a resident of or domiciled in any jurisdiction where the offer and sale of the Investor's entire investment in the Company;Preferred Shares is prohibited by law; and
(iij) that there is no guarantee that the Investor will realize any gain from his or her investment has relied solely upon its own investigation and the advice of its own advisors in making the Company and that decision to purchase the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Preferred Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;.
Appears in 1 contract
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as followsfollows as of the date hereof and as of the Closing Date:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. (a) The Investor is a limited liability limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware. (i) has no need for liquidity in As of the investment in date hereof, the Shares, Investor is the legal and beneficial owner of the Current Shares and (ii) is able as of immediately prior to bear the substantial economic risks Closing, Investor will be the legal and beneficial owner of an investment the Current Shares and any Additional Preferred Shares. The Investor owns and will own the Current Shares (and will own any Additional Preferred Shares when issued) outright and free and clear of any options, contracts, agreements, liens, security interests, mortgages, pledges, charges, equities, claims or restrictions on transferability or encumbrances of any kind, or other encumbrances, other than those contained in the XXX.
(b) The Investor has and will have sole and unrestricted voting power with respect to the Current Shares (and will have sole and unrestricted voting power with respect to any Additional Preferred Shares once issued) and none of the Current Shares is or will be (and none of the Additional Preferred Shares will be once issued) subject to any voting trust or other agreement, arrangement, or restriction with respect to the voting of such shares, except as contemplated by this Agreement or as contained in the Limited Liability Partnership Agreement of the Investor, dated as of December 7, 2015.
(c) The Investor has full right, power, authority and capacity to enter into this Agreement and the XXX Amendment and to consummate the Transaction. All partnership action on the part of the Investor and its equityholders necessary for an indefinite periodthe authorization, execution, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end delivery of this Agreement is and the XXX Amendment, the performance of all obligations of the Investor under this Agreement and the XXX Amendment and the consummation of the Transaction and the transactions contemplated by the XXX Amendment, has been taken. This Agreement and the XXX (as amended by the XXX Amendment when executed and delivered) constitute valid and legally binding obligations of the Investor's true , enforceable against the Investor in accordance with their respective terms.
(d) Entry into this Agreement and correct residencethe XXX Amendment, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss consummation by the Investor of the Transaction, do not and will not (i) violate or conflict with any provision of the organizational documents of the Investor's entire investment in , as amended to the Company;
date of this Agreement, (ii) that there is no guarantee that violate any applicable law binding on the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
Investor, (iii) that violate or constitute a default (or constitute an event which, with notice or lapse of time or both, would violate or constitute a default) under any of the Company has no current plan terms or intention provisions of any loan or credit agreement, indenture, debenture, note, bond, mortgage, deed of trust, lease, sublease, license, contract or other agreement (each, a “Contract”) to issue dividends with respect to which the Shares;
Investor is a party or accelerate the Investor’s obligations under any such Contract or (iv) that there has never been require any representationconsent, guarantee approval, order, or warranty made to the Investor by any brokerauthorization of, the Companyor registration, its agents qualification, declaration, or employees filing with, or any other personnotice to, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;Governmental Authority.
Appears in 1 contract
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (a) (i) It is an institutional “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act; (ii) it has no need for liquidity sufficient knowledge and experience in investing in companies similar to the Company so as to be able to evaluate the risks and merits of its investment in the SharesCompany and it is able financially to bear the risks thereof; (iii) it has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management; (iiiv) all documents, records, and information pertaining to its investment in the Common Stock and the Company that have been requested by it, if any, have been made available or delivered to it prior to the date hereof; (v) its financial condition is such that it is able to bear the substantial economic risks risk of an investment in holding the Shares for an indefinite periodperiod of time and can bear the loss of the entire investment in such Shares; and (vi) it is not purchasing the Shares as the result of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act or as a result of the Investor's review of public filings by the Company;
(b) The Investor understands that this Agreement is made in reliance upon the Investor’s express representations, which it hereby represents and warrants to the Company, that (i) the Shares being purchased by the Investor are being acquired for the Investor’s own account (and not on behalf of any other person or entity) for the purpose of investment and not with a view to, or for sale in connection with, the distribution thereof, nor with any present intention of distributing or selling the Shares or any portion thereof, (ii) the Investor was not organized for the specific purpose of acquiring the Shares and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested Shares will not be sold by the Investor have been made available to without registration under the Investor. The undersigned has relied only on such documents and that no written Securities Act or oral representation applicable state securities laws, or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.an exemption therefrom;
e. (c) The Investor further understands that the Shares being purchased by the Investor hereunder have not been registered under the Securities Act, nor pursuant to the provisions of the Act or any state securities laws or other laws of any other applicable jurisdictions, and are instead being offered and sold in reliance on exemptions for private offerings contained in an exemption from such registration requirements. The Investor represents and warrants to the Company that, to the Investor’s knowledge, the Investor has not taken any action which could reasonably be expected to cause the sale of the Shares to be sold by the Company to the Investor to fail to qualify as exempt from the registration requirements of the Securities Act. The Investor further understands that until such time as the Shares shall have been registered under the Securities Act and applicable state securities laws or shall have been transferred in the laws accordance with an opinion of such jurisdictions. The Investor represents counsel reasonably satisfactory to the Company that he such registration is an “accredited investor”not required, as stop transfer instructions shall be issued to the Company’s transfer agent and any certificate or certificates representing such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware securities shall bear a restrictive legend stating that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares securities have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under Act and applicable state securities laws and referring to restrictions on the Securities Act or an exemption from such registration is available. transferability and sale thereof.
(d) The Investor further understands that the Company has no intention its representations and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales warranties hereunder will not preclude disposition of the Shares under Rule 144 under the Securities Act (which it understands is not nowwithout registration thereof, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased in compliance with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will (“Rule 144”). The Investor understands and acknowledges, however, that there may not be available for at least one (1) yearwhen the Investor wishes to sell the Shares, and there can be no assurance that or any portion thereof, the conditions necessary adequate current public information with respect to the Company which would permit routine offers or sales of the Shares under such securities pursuant to Rule 144 will ever be satisfied144, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not availabletherefore, compliance with the Securities Act or some other exemption from the registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale and prospectus delivery requirements of the Shares without registration.Securities Act may be required for any such offer or sale; and
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(e) (i) that The Investor is validly existing as a limited partnership in good standing under the Shares are a speculative investment and involve a high degree laws of risk the State of loss by Delaware; (ii) the Investor has all requisite power and authority to execute and deliver this Agreement; and (iii) this Agreement constitutes the valid and legally binding obligation of the Investor's entire investment in the Company;
(ii) that there is no guarantee that , enforceable against the Investor will realize any gain from his or her investment in accordance with its terms, subject to bankruptcy, reorganization, insolvency and other similar laws affecting the Company enforcement of creditors’ rights generally and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length general principles of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;equity.
Appears in 1 contract
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY(a) It is acquiring the Shares for its own account for investment and not with a view towards the resale, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYtransfer or distribution thereof, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFnor with any present intention of distributing the Shares, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYbut subject, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDnevertheless, to any requirement of law that the disposition of the Investor's property shall at all times be within the Investor's control, and without prejudice to the Investor's right at all times to sell or otherwise dispose of all or any part of such securities under a registration under the Securities Act or under an exemption from said registration available under the Securities Act.
b. (b) It has full power and legal right to execute and deliver this Agreement and to perform its obligations hereunder.
(c) The Investor is a business trust, validly formed and existing under the laws of the State of Massachusetts.
(id) It has taken all action necessary for the authorization, execution, delivery, and performance of this Agreement and its obligations hereunder, and, upon execution and delivery by the Company, this Agreement shall constitute the valid and binding obligations of the Investor, enforceable against the Investor in accordance with its terms, except that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and general principles of equity.
(e) There are no need claims for liquidity brokerage commissions or finder's fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement made by or on behalf of the Investor.
(f) It has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the SharesCompany as contemplated by this Agreement, (ii) and is able to bear the substantial economic risks risk of an such investment in the Shares for an indefinite period, period of time. It has been furnished access to such information and (iii) at documents as it has requested and has been afforded an opportunity to ask questions of and receive answers from representatives of the present time, could afford Company concerning the complete loss of such investment in the Shares.
c. The address set forth at the end terms and conditions of this Agreement is the Investor's true and correct residence, and the Investor has no present intention purchase of changing such residence to any other state or jurisdictionthe Shares contemplated hereby and the business and financial condition of the Company.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he (g) It is an “"accredited investor”, " as such term is defined in Rule 501(a) of Regulation D 501 under the Securities Act and is a Qualified Institutional Buyer as defined under Rule 144A of 1933, as amended. the Securities Act.
(h) The Investor is fully aware (a) acknowledges that the Shares are not registered under the Securities Act or under any state securities laws and that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she acquired by it must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold held indefinitely by it unless they are subsequently registered under the Securities Act and under any applicable state securities laws or an exemption from such registration is available. The Investor further understands , (b) is aware that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view pursuant to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could may be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that Rule and that in connection with sales of securities for which such cases where the Rule 144 is not availableapplicable, compliance with some other registration exemption from registration will be required. The , (c) is aware that Rule 144 is not presently available for use by the Investor understands that for resale of the Shares and (d) is aware that, except as provided in Section 10 of this Agreement, the Company is under no obligation to the undersigned not obligated to register under the Shares Securities Act any sale, transfer or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner disposition of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;.
Appears in 1 contract
Samples: Securities Purchase Agreement (Chartwell Leisure Inc)
Representations and Warranties of the Investor. In order By subscribing to induce the Company to accept this AgreementOffering, the Investor (and, if the Investor is purchasing the Shares subscribed for hereby in a fiduciary capacity, the person or persons for whom the Investor is so purchasing) represents and warrants to the Company Company, which representations and warranties are true and complete in all material respects, as followsof the date of each Closing:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. (a) The Investor has all necessary power and authority under all applicable provisions of law to subscribe to the Offering, to execute and deliver this Agreement and to carry out the provisions thereof. All actions on the Investor’s part required for the lawful subscription to the Offering have been or will be effectively taken prior to the Closing. Upon subscribing to the Offering, this Agreement will be a valid and binding obligation of Investor, enforceable in accordance with its terms, except (i) has no need for liquidity as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights and (ii) as limited by general principles of equity that restrict the availability of equitable remedies.
(b) The Investor acknowledges the public availability of the Company’s current Offering Circular, which can be viewed on the SEC Xxxxx Database under the filed number 024-10856. This Offering Circular is made available in the Company’s most recent qualified offering statement on SEC Form 1-A, as amended, deemed qualified on October 28, 2019. In the Company’s Offering Circular, it makes clear the terms and conditions of the Offering and the risks associated therewith are described. The Investor has had an opportunity to discuss the Company’s business, management and financial affairs with directors, officers and management of the Company and has had the opportunity to review the Company’s operations and facilities. The Investor has also had the opportunity to ask questions of and receive answers from the Company and its management regarding the terms and conditions of this investment. The Investor acknowledges that except as set forth herein, no representations or warranties have been made to the Investor, or to Investor’s advisors or representative, by the Company or others with respect to the business or prospects of the Company or its financial condition.
(c) The Investor has sufficient experience in financial and business matters to be capable of utilizing such information to evaluate the merits and risks of the Investor’s investment in the Shares, (ii) is able and to bear make an informed decision relating thereto. Alternatively, the substantial economic Investor has utilized the services of a purchaser representative and together they have sufficient experience in financial and business matters that they are capable of utilizing such information to evaluate the merits and risks of the Investor’s investment in the Shares, and to make an informed decision relating thereto. The Investor has evaluated the risks of an investment in the Shares for an indefinite periodShares, and (iii) at the present time, could afford the complete loss of such investment including those described in the Shares.
c. The address set forth at section of the end of this Agreement is the Investor's true Offering Circular entitled “Risk Factors,” and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms determined that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to is suitable for the Investor. The undersigned Investor has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to adequate financial resources for an investment of this character. The Investor could bear a complete loss of the Investor Investor’s investment in connection with the Shares and if so made, has not been relied uponCompany.
e. (d) The Investor understands that the Shares have are not been being registered under the Securities Act, nor pursuant to on the provisions ground that the issuance thereof is exempt under Regulation A of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(aSection 3(b) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, andand that reliance on such exemption is predicated in part on the truth and accuracy of the Investor’s representations and warranties, therefore, cannot be offered or sold unless they are subsequently registered under and those of the Securities Act or an exemption from such registration is availableother purchasers of the Shares in the Offering. The Investor further understands that the Shares are not being registered under the securities laws of any states on the basis that the issuance thereof is exempt as an offer and sale not involving a registrable public offering in such state, since the Shares are “covered securities” under the National Securities Market Improvement Act of 1996. The Investor covenants not to sell, transfer or otherwise dispose of any Shares unless such Shares have been registered under the Securities Act and under applicable state securities laws, or exemptions from such registration requirements are available.
(e) The Investor acknowledges and agrees that there is no ready public market for the Shares and that there is no guarantee that a market for their resale will ever exist. The Company has no intention and is under no obligation to register its list any of the Shares on any market or take any steps (including registration under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, ) with respect to facilitating trading or resale of the provisions Shares. The Investor must bear the economic risk of this investment indefinitely and Investor acknowledges that the Investor is able to bear the economic risk of losing the Investor’s entire investment in the Shares.
(f) The Investor represents that either: (i) the Investor is an “accredited investor” within the meaning of Rule 144 promulgated 501 of Regulation D under the Securities Act permitting resales Act; or (ii) the Purchase Price, together with any other amounts previously used to purchase Shares in the Offering, does not exceed ten percent (10%) of the Shares will not greater of the Investor’s annual income or net worth (or in the case where the Investor is a non-natural person, their revenue or net assets for such Investor’s most recently completed fiscal year end). The Investor represents that to the extent it has any questions with respect to its status as an accredited investor, or the application of the investment limits, it has sought professional advice.
(g) Within five (5) days after receipt of a request from the Company, the Investor hereby agrees to provide such information with respect to its status as a stockholder (or potential stockholder) and to execute and deliver such documents as may reasonably be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales comply with any and all laws and regulations to which the Company is or may become subject, including, without limitation, the need to determine the accredited investor status of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the RuleCompany’s stockholders. The Investor further understands agrees that in connection with sales the event it transfers any Shares, it will require the transferee of securities for which Rule 144 is not available, compliance with some other exemption from registration will such Shares to agree to provide such information to the Company as a condition of such transfer.
(h) The Investor acknowledges that the Per Share Purchase Price of the Shares to be requiredsold in the Offering was set by the Company on the basis of the Company’s internal valuation and no warranties are made as to value. The Investor understands further acknowledges that future offerings of securities of the Company may be made at lower valuations, with the result that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registrationInvestor’s investment will bear a lower valuation.
j. (i) The Investor has been advised to consult maintains the Investor’s domicile (and is not a transient or temporary resident) at the address provided with the Investor’s own attorney regarding legalsubscription.
(j) If the Investor is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, taxas amended), and other matters concerning an investment in the Company and Investor hereby represents that it has done so, satisfied itself as to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware full observance of the following:
(i) that the Shares are a speculative investment and involve a high degree laws of risk of loss by the Investor of the Investor's entire investment its jurisdiction in the Company;
(ii) that there is no guarantee that the Investor will realize connection with any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention invitation to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of subscribe for the Shares or any such other securitiesuse of this Agreement, or including (i) the legal requirements within its jurisdiction for the purchase of the overall business of the Company;Shares, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained, and
Appears in 1 contract
Samples: Subscription Agreement
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to to, and covenants and agrees with, the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEYThis Agreement constitutes a valid and binding agreement of Investor enforceable against it in accordance with its terms, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYexcept as such enforceability may be limited by applicable bankruptcy, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFmoratorium, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYinsolvency, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDreorganization, fraudulent conveyance or other laws affecting the enforcement of creditors’ rights generally or by general equitable principles, including, without limitation, those limiting the availability of specific performance, injunctive relief and other equitable remedies and those providing for equitable defenses.
b. The Investor (i) has adequate means of providing for its current needs and possible contingencies, it anticipates no need for liquidity now or in the foreseeable future to sell the Note (or the Convertible Securities issuable thereunder) for which it hereby subscribes and it can afford the loss of its entire investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the SharesCompany.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention such knowledge and experience in financial and business matters that it is capable of changing such residence to any other state or jurisdictionevaluating the merits and risks of investment in the Company and of making an informed investment decision.
d. The Investor will be the only owner, beneficial or otherwise, of the Note (and the Convertible Securities issuable thereunder) being subscribed for hereby.
e. The Investor has received, and read, and is familiar with the Offering Memorandum of the Company dated June 12, 2003 and confirms that all documents, records and books which the Investor has requested pertaining to the Investor’s proposed investment in the Company reasonably requested by the Investor have been made available to it. The Investor is aware that no federal or state agency has passed upon the Note (or the Convertible Securities issuable thereunder) or made any finding or determination concerning the fairness of this investment.
f. The Investor has had an opportunity to ask questions of, and receive answers from, representatives of the Company concerning the terms and conditions of this investment, and all such questions have been answered to the full satisfaction of the Investor. The undersigned has relied only on such documents and Investor understands that no written or oral representation or information inconsistent with such information person other than the Company has been authorized to make any representation and if made, such representation may not be relied on unless it is made or furnished in writing and signed by the Company. The Company has not, however, rendered any investment advice to the Investor with respect to the suitability of an investment in the Note (or the Convertible Securities issuable thereunder).
g. The Note (and the Convertible Securities issuable thereunder) for which the Investor hereby subscribes will be acquired for the Investor’s own account for investment. The Investor intends to hold the Note (and the Convertible Securities issuable thereunder) for indefinitely and it is not acquiring the Note (or the Convertible Securities issuable thereunder) with a view toward distribution in a manner which would require registration under the Securities Act, and it does not presently have any reasons to anticipate any change in its circumstances or other particular occasion or event which would cause it to sell such Note (or the Convertible Securities issuable thereunder).
h. The Investor is aware that: (i) an investment in the Company involves a high degree of risk; and (ii) no federal, state, local or foreign income tax consequences which may be relevant to it are discussed in any documents provided in connection with the Shares and if so made, has not been relied uponacquisition of the Note (or the Convertible Securities issuable thereunder).
e. i. The Investor has received no representations or warranties from the Company other than those furnished in writing and signed by the Company.
j. The Investor (i) has the capacity to purchase and hold the Note (and the Convertible Securities issuable thereunder) and represents that the acquisition of the Note (and the Convertible Securities issuable thereunder) will not result in any breach of, or violation of the terms or provisions of, or constitute a default under, any indenture or other agreement or instrument by which the Investor or the Investor’s property is bound, or violate any applicable law, regulation or court decree; (ii) has obtained such tax advice that the Investor has deemed necessary; and (iii) represents that the Investor’s residence is as set forth on the signature page hereof.
k. No consent, approval or authorization of, or filing, registration or qualification with, any court or governmental authority on the part of the Investor is required for the execution and delivery of this Agreement by the Investor and the performance of the Investor’s obligations and duties hereunder.
l. The Investor understands that the Shares Company will have the right to rescind the subscription of any investor if any of the representations, warranties, covenants, or agreements contained herein are found to be misleading, false, or incorrect.
m. The Investor has not paid, and will not pay, a commission, finder’s fee, or other selling cost or fee to any person in connection with its subscription.
n. The Investor is an “accredited investor” as such term is defined in Regulation D of the Act. Accredited Investors include, but are not limited to:
(i) Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;
(ii) Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer;
(iii) Any natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his purchase exceeds $1,000,000;
(iv) Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year;
(v) Any entity in which all of the equity owners are accredited investors; or
(vi) Any bank as defined in Section 3(a)(2) of the Act (defined below), or savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity.
o. The Investor acknowledges that the Note (and the Convertible Securities issuable thereunder) being offered hereunder have not been registered under the United States Securities Act of 1933, as amended (the “Act”), nor pursuant to and agrees that it will not offer or sell the provisions of Note (or the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained Convertible Securities issuable thereunder) in the Securities Act and in United States to, or for the laws of such jurisdictions. The Investor represents to the Company that he is an account or benefit of, “accredited investor”, U.S. persons” (as such term is defined in Rule 501(a) of Regulation D S promulgated under the Securities Act; herein, “Regulation S”) except in accordance with Regulation S under the Act, pursuant to registration under the Act or pursuant to an available exemption from the registration requirements of 1933, as amendedthe Act. The Investor is fully aware that agrees not to engage in hedging transactions involving the Shares to which he or she is subscribing are to be sold shares received pursuant hereto unless in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreementcompliance with the Act. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands acknowledges that the Company has no intention and will not register any transfer of the Note (or the Convertible Securities issuable thereunder) acquired hereunder, unless such transfer is under no obligation made in accordance with Regulation S, pursuant to register its Shares registration under the Securities Act or pursuant to comply with the requirements for any an available exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act Act.
p. The Investor represents and warrants that it has not received offering materials in the United States (which as defined in Regulation S), if it understands is an entity it is formed under the laws of a jurisdiction other than the United States, and that its principal place of business is outside the United States.
q. The Investor represents and warrants that it is not now, a “U.S. person” (as such term is defined in Regulation S) and will that it is not likely be, availableacquiring the Note (or the Convertible Securities issuable thereunder) for the account or benefit of any rule of the Securities and Exchange Commission or any successor theretoU.S. person.
f. r. The Investor understands acknowledges that the certificate(sNote (and any Convertible Securities issuable thereunder) representing the Shares received pursuant to this Agreement will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Companylegend: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE SECURITIES COVERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "“SECURITIES ACT") ”), OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT JURISDICTIONS AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLDOFFERED OR SOLD WITHIN THE UNITED STATES OR TO, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES THE ACCOUNT OR BENEFIT OF, “U.S. PERSONS” (AS DEFINED IN REGULATION S PROMULGATED UNDER THE SECURITIES ACT) EXCEPT IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT, PURSUANT TO REGISTRATION OF THE SECURITIES UNDER THE SECURITIES ACT OR PURSUANT TO AN OPINION AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIREDSECURITIES ACT.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Samples: Subscription Agreement (BBJ Environmental Technologies Inc)
Representations and Warranties of the Investor. In order to induce The Investor understands that the Shares are being sold in reliance upon the exemptions provided in the Securities Act and/or Regulation D thereunder, together with exemptions provided under applicable state securities laws, for transactions involving limited offers and sales, and the Investor, for himself and for his heirs, personal representatives, successors and assigns, makes the following representations, declarations and warranties with the intention that the same may be relied on by the Company in determining the suitability of the Investor as an investor in the Company:
(a) The Investor has consulted his attorney, accountant or investment advisor with respect to accept this Agreementthe investment contemplated hereby and its suitability for the Investor. The undersigned has received no representations or warranties from the Company or its officers, directors, employees or agents, or any other person, and, in making an investment decision, the Investor hereby represents is relying solely on independent investigations made by the Investor or representative(s) of the Investor.
(b) The Investor has read and warrants fully understands that certain Information Statement as filed with the Securities and Exchange Commission on April 25, 2000.
(c) The Company has made available to the Investor, during the course of this transaction and prior to the purchase of any of the Shares, the opportunity to ask questions of and receive answers from the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEYor any of its representatives concerning the Company, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTORand to obtain any additional information relative to the financial condition and business of the Company, to the extent that such parties possess such information or can acquire it without unreasonable effort or expense. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYAll such questions, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFif asked, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYhave been answered satisfactorily, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDand all such documents, if requested, have been received and found to be fully satisfactory. In connection therewith, the Investor is not relying on any documents, records or other information, except that contained in written form and signed by the President of the Company.
b. (d) The Investor understands and acknowledges that: (i) while the Company has an operating history, the purchase of Shares by the Investor involves a high degree of risk of loss of the Investor's entire investment, and there is no need for liquidity in the investment in the Shares, assurance of any income from such investment; (ii) is able to the Investor must bear the substantial economic risks risk of an investment in the Shares for an indefinite period, period because the offer and (iii) at the present time, could afford the complete loss sale of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the Act or any state securities laws or other laws of any other applicable jurisdictions, and are being offered and sold in reliance on upon exemptions for private offerings contained provided in the Securities Act and in the state securities laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have transactions not been registered under the Securities Act, involving any public offering and, therefore, cannot be offered resold or sold transferred unless they are subsequently registered under the Securities Act and applicable state laws, or unless an exemption from such registration is available. The Investor further understands that ; (iii) there may not be a public market for the Company has no intention and is under no obligation to register its Shares under in the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply future; (iv) the Investor with any information necessary to enable the Investor to make routine sales of is purchasing the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for investment purposes only for the Investor's own account, account and not for investment and are not being purchased the benefit of any other person or with a any view to or for toward the resale or other distribution thereof; (v) because there are substantial restrictions on the transferability of the Shares, it may not be possible for the Investor to liquidate an investment therein readily in case of an emergency; and (vi) the Investor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person or anyone else any of the Shares which the Investor hereby subscribes to purchase or any part thereof, and the Investor has no present plans to enter into any such contract, undertaking, agreement or arrangement relating to any resale or other distribution arrangement.
(e) The undersigned is an "accredited investor" within the meaning of Regulation D promulgated under the Securities Act. The net worth, annual income and total assets, as the case may be, of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected and the other information set forth in whole or Section 6 are true, correct and complete in part in all material respects. Any information which the sole Investor has heretofore furnished to the Company with respect to the Investor is correct and absolute discretion complete as of the Company, and date of this Agreement, unless properly revoked before the completion of the sale of the Shares and if there should be any material change in such information prior to the Investorpurchase of Shares, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by will immediately furnish such revised or corrected information to the Company.
i. (f) The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for is at least one (1) year21 years of age, is knowledgeable and experienced in evaluating investments and is experienced in financial and business matters and he has evaluated the risks of investing in the Shares, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) determined that the Shares are a speculative suitable investment for him. The Investor has adequate net worth and involve a high degree means of providing for his current needs and possible personal contingencies and has no need, and anticipates no need in the foreseeable future, to sell the Shares the purchase of which is subscribed. The Investor can bear the economic risk of an investment in the Shares and has a sufficient net worth to sustain a complete loss of his investment. The aggregate amount of the investments of the Investor in, and his commitments to, all similar investments that are illiquid is reasonable in relation to his net worth.
(g) The Investor maintains his domicile, and is not merely a transient or temporary resident, at the residence address shown on the signature page of this Agreement.
(h) The Investor is a United States citizen or is otherwise a U.S. Person* as defined below.
(i) The representations, warranties, agreements and acknowledgements made by the Investor in this Agreement are made with the intention that they be relied upon by the Company in determining the suitability of the Investor's entire investment in the Company;
(ii) that there is no guarantee that Investor as a purchaser of Shares, and shall survive their purchase. In addition, the Investor will realize any gain from his or her investment in undertakes to notify the Company and that immediately of any change in any representation or warranty of the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;set forth herein.
Appears in 1 contract
Samples: Subscription Agreement (Insynq Inc)
Representations and Warranties of the Investor. In The undersigned, in order to induce the Company to accept this AgreementOffer, the Investor hereby warrants and represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED(A) The undersigned has sufficient liquid assets to sustain a loss of the undersigned's entire investment.
b. (B) The Company has not made any other representations or warranties to the Investor with respect to the Company except as contained herein. The Company has not rendered any investment advice to the Investor with respect to the Company.
(C) The Investor understands that the Securities involve a high degree of risk and represents that the Investor (i) has adequate means of providing for its current financial needs and possible contingencies, and has no need for liquidity in the of investment in the Shares, Securities; (ii) can afford (a) to hold unregistered securities for an indefinite period of time as required and (b) sustain a complete loss of the entire amount of the subscription; and (iii) has not made an overall commitment to investments which are not readily marketable which is able disproportionate so as to bear cause such overall commitment to become excessive.
(D) The undersigned has carefully reviewed the substantial economic Memorandum. The undersigned has also been afforded the opportunity to ask questions of, and receive answers from, the officers and/or directors of the Company concerning the terms and conditions of the Offering and to obtain any additional information, to the extent that the Company possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of the information furnished; and has availed itself of such opportunity to the extent the Investor considers appropriate in order to permit it to evaluate the merits and risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement Securities. It is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms understood that all documents, records and books pertaining to the this investment in the Company reasonably requested by the Investor have been made available to for inspection, and that the Investor. books and records of the Company will be available upon reasonable notice for inspection by investors during reasonable business hours at its principal place of business.
(E) The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands acknowledges that the Securities including Underlying Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, Act in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor for transactions by an issuer not involving a public offering, and further understands that the Company has no intention and Investor is under no obligation purchasing the Securities without being furnished any prospectus setting forth all of the information that would be required to register its Shares be furnished under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor theretoAct.
f. (F) The Investor understands undersigned further acknowledges that this Offering has not been passed upon or the certificate(smerits thereof endorsed or approved by any state or federal authorities.
(G) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares Securities being subscribed for are being acquired solely for the Investor's own account, for investment account of the undersigned and are not being purchased with a view to to, or for resale in connection with, any distribution in any jurisdiction where such sale or distribution would be precluded. By such representation, the resale Investor means that no other person has a beneficial interest in the Securities (or Underlying Shares) subscribed for hereunder, and that no other distribution person has furnished or will furnish directly or indirectly, any part of or guarantee the payment of any part of the Shares; and consideration to be paid to the Investor has no present plans Company in connection therewith. The undersigned does not intend to enter into dispose of all or any contract, undertaking, agreement or arrangement relating to any resale or other distribution part of the Shares.
h. The Investor understands that this Subscription may be accepted Securities (or rejected in whole Warrant or in part in the sole and absolute discretion Common Stock issuable upon any exercise of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, Warrant) except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, compliance with the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts applicable state securities laws and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is Securities are being offered pursuant to a specific exemption under no obligation to the provisions of the Act, which exemption(s) depends, among other things, upon compliance with the provisions of the Act.
(H) The undersigned further represents and agrees that the undersigned will not sell, transfer, pledge or otherwise dispose of or encumber the Securities (including the Underlying Shares) prior to register registration, or the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legalundersigned will, taxif requested, and other matters concerning an investment in furnish the Company and has done so, its transfer agent with an opinion of counsel satisfactory to the extent Company in form and substance that registration under the undersigned considers necessaryAct or applicable state securities laws is not required.
k. (I) The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) undersigned hereby agrees that the Company has no current plan may insert the following or intention to issue dividends similar legend on the face of the certificates evidencing the Securities and the Underlying Shares, if required in compliance with federal and state securities laws: "These securities have not been registered under Act or under the securities laws of any state. They may not be sold, offered for sale, pledged or hypothecated in the absence of a registration statement in effect with respect to the Shares;securities under such act or an opinion of counsel reasonably satisfactory to the company that such registration is not required pursuant to a valid exemption under the Act."
(ivJ) that there Neither the Company nor any person acting on its behalf has never been offered or sold the undersigned the Securities by means of any representation, guarantee form of general solicitation or warranty made general advertising and the Securities were not offered or sold to the Investor by any broker, means of publicly disseminated advertisements or sales literature. The undersigned certifies that each of the Company, its agents or employees or any other person, expressly or by implication, as to:
foregoing representations and warranties set forth in subsection (A) the approximate or exact length through (J) inclusive of time that the Investor will be required to remain this Section 4 are true as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any date hereof and shall survive such other securities, or of the overall business of the Company;date.
Appears in 1 contract
Samples: Subscription Agreement (Simtrol Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the 5.1. The Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor that: (i) has no need for liquidity in the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “"accredited investor”, " as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The amended (the "Securities Act"), and the Investor is fully aware also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares set forth on the Signature Page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor has answered all questions on the Signature Page hereto and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct in all material respects as of the date hereof; (iv) the Investor has, in connection with its decision to purchase the number of Shares set forth on the signature page hereto, relied only upon the Company Information provided to the Investor by the Company in contemplation of this offering, the representations and warranties of the Company contained herein and other publicly available information; and (v) there are no suits, pending litigation or claims against the Investor that could materially affect the net worth of the Investor. Investor understands that its acquisition of the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have has not been registered under the Securities Act, andor registered or qualified under any state securities law in reliance on specific exemptions therefrom, thereforewhich exemptions may depend upon, cannot among other things, the bona fide nature of the Investor's investment intent as expressed herein. Investor has completed or caused to be offered completed and delivered to the Company the Investor Questionnaire attached hereto Exhibit B, which questionnaire is true and correct in all material respects.
5.2. The Investor acknowledges, represents and agrees that the Company has represented that no action has been taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or sold unless they are subsequently registered under possession or distribution of offering materials in connection with the Securities Act or an exemption from such registration issue of the Shares, in any jurisdiction outside the United States where action for that purpose is availablerequired.
5.3. The Investor further understands that represents and warrants to the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply (i) the Investor with any information has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to enable authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to make routine sales general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor theretoInvestors herein may be legally unenforceable.
f. 5.4. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view nothing in this Agreement or any other materials presented to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of in connection with the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole purchase and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.5. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel and subject to the Investorlimitations set forth in Section 7.2 hereof, shall survive determines that it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus. The Investor is aware that, in such event, the Shares will not be subject to ready liquidation, and that any Shares purchased by the Investor would have to be held during such suspension. The overall commitment of the Investor to investments which are not readily marketable is not excessive in view of the Investor’s death's net worth and financial circumstances, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales and any purchase of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary cause such commitment to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Ruleexcessive. The Investor further understands that in connection with sales is able to bear the economic risk of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessaryShares.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, 3.1. Investment Intent ----------------- Each of the Investor hereby severally and not jointly represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEYthat it: (a) is acquiring the stock to be acquired by it hereunder for its own account and not with a view to, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYor for sale in connection with, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFany resale, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYtransfer or distribution thereof, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor nor with any present intention of distributing such stock, but subject, nevertheless, to any requirement of law that the disposition of the Investor's property shall at all times be within the Investor' control, and without prejudice to the Investor's right at all times to sell or otherwise dispose of all or any part of such securities under a registration under the Securities Act or under an exemption from said registration available under the Securities Act; (ib) has no need full power and legal right to execute and deliver this Agreement and to perform its obligations hereunder; (c) has taken all action necessary for liquidity the authorization, execution, delivery, and performance of this Agreement and its obligations hereunder, and, upon execution and delivery by the Company, this Agreement shall constitute the valid and binding obligation of such Investor, enforceable against such Investor in accordance with its terms, except that such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and general principles of equity; (d) has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the SharesCompany as contemplated by this Agreement, (ii) and is able to bear the substantial economic risks risk of an such investment in the Shares for an indefinite period, period of time; (e) has been furnished access to such information and (iii) at documents as it has requested and has been afforded an opportunity to ask questions of and receive answers from representatives of the present time, could afford Company concerning the complete loss of such investment in the Shares.
c. The address set forth at the end terms and conditions of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions purchase of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act stock contemplated hereby; and in the laws of such jurisdictions. The Investor represents to the Company that he (f) is an “"accredited investor”, " as such term is defined in Rule Section 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered promulgated under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Samples: Subscription Agreement (Icoa Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the Investor hereby represents and warrants to the Company that the statements contained in this Article 3 are true and correct as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEYof the Closing Date as though made as of the Closing Date, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDexcept to the extent such representations and warranties are specifically made as of a particular date (in which case such representations and warranties are true and correct as of such other specified date).
b. The 3.1 Investor (i) has no need for liquidity in is an “accredited investor” as defined by Rule 501 of Regulation D, and Investor is capable of evaluating the merits and risks of its investment in the SharesClosing Securities and has the ability and capacity to protect its interests.
3.2 Investor understands that, (ii) is able to bear the substantial economic risks of an investment except as provided in the Registration Rights Agreement, the Closing Securities, the Note Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Warrant Shares have not been registered under the Act on the ground that the issuance thereof is exempt under Section 4(2) of the Act and/or Regulation D as a transaction by an issuer not involving any public offering and that, in the view of the Commission, the statutory basis for the exception claimed would not be present if any of the representations and warranties of Investor contained in this Agreement are untrue or, notwithstanding the Investor’s representations and warranties, the Investor currently has in mind acquiring any of the Closing Securities Actfor resale upon the occurrence or non-occurrence of some predetermined event.
3.3 Investor is purchasing the Closing Securities and, in the event that the Investor should acquire any Note Shares or Warrant Shares, will be acquiring such Note Shares or Warrant Shares, as applicable, as principal for its own account, and not for the benefit of any other Person, for investment purposes and not with a view to distribution or resale, nor pursuant to with the intention of selling, transferring or otherwise disposing of all or any part thereof for any particular price, or at any particular time, or upon the happening of any particular event or circumstance, except selling, transferring, or disposing of the Closing Securities, Note Shares and Warrant Shares, as applicable, in full compliance with all applicable provisions of the Act, the rules and regulations promulgated by the Commission thereunder, and applicable state securities laws laws; and that an investment in the Closing Securities, Note Shares and Warrant Shares is not a liquid investment.
3.4 Investor confirms that Investor has had the opportunity to ask questions of, and receive answers from, the Company or any authorized Person acting on its behalf concerning the Company and its business and to obtain any additional information, to the extent possessed by the Company (or to the extent it could have been acquired by the Company without unreasonable effort or expense) necessary to verify the accuracy of the information received by Investor. In connection therewith, Investor acknowledges that Investor has had the opportunity to discuss the Company’s business, management and financial affairs with the Company’s management or any authorized Person acting on its behalf. Investor has received and reviewed all the information concerning the Company and the Closing Securities, both written and oral, that Investor desires.
3.5 Investor has all requisite legal and other power and authority to execute and deliver this Agreement and to carry out and perform its obligations under the terms of this Agreement. This Agreement constitutes a valid and legally binding obligation of Investor enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of any other applicable jurisdictionsgeneral applicability relating to or affecting creditors’ rights and to general equity principles.
3.6 Investor has considered the suitability of this investment and the transactions contemplated by this Agreement for the Investor’s particular federal, in reliance on exemptions state, and local tax and financial situation and has independently determined that this investment and the transactions contemplated by this Agreement are a suitable investment for private offerings contained the Investor..
3.7 Investor acknowledges that an investment in the Closing Securities Act is speculative and in the laws involves a high degree of such jurisdictions. The risk and that Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must can bear the economic risk of his or her investment in the Company for an indefinite period acceptance of time because the Shares have not been registered under the Securities ActClosing Securities, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is availableincluding a total loss of its investment. The Investor further recognizes and understands that no federal or state, agency has recommended or endorsed the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales purchase of the Shares under Rule 144 under Closing Securities. Investor acknowledges that it has such knowledge and experience in financial and business matters that Investor is capable of evaluating the Securities Act (which it understands is not now, merits and will not likely be, available) or any rule risks of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company Closing Securities and has done so, to the extent the undersigned considers necessaryof making an informed investment decision with respect thereto.
k. 3.8 The Investor acknowledges and is aware principal place of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;Investor is correctly set forth on the first page of this Agreement.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Players Network)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to to, and covenants and agrees with, the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEYThis Agreement constitutes a valid and binding agreement of Investor enforceable against it in accordance with its terms, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYexcept as such enforceability may be limited by applicable bankruptcy, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFmoratorium, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYinsolvency, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDreorganization, fraudulent conveyance or other laws affecting the enforcement of creditors' rights generally or by general equitable principles, including, without limitation, those limiting the availability of specific performance, injunctive relief and other equitable remedies and those providing for equitable defenses.
b. The Investor (i) has adequate means of providing for its current needs and possible contingencies, it anticipates no need for liquidity now or in the foreseeable future to Non-US Subscription Agreement sell the Note (or the Convertible Securities issuable thereunder) for which it hereby subscribes and it can afford the loss of its entire investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the SharesCompany.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention such knowledge and experience in financial and business matters that it is capable of changing such residence to any other state or jurisdictionevaluating the merits and risks of investment in the Company and of making an informed investment decision.
d. The Investor will be the only owner, beneficial or otherwise, of the Note (and the Convertible Securities issuable thereunder) being subscribed for hereby.
e. The Investor has received, and read, and is familiar with the Offering Memorandum of the Company dated June 12, 2003 and confirms that all documents, records and books which the Investor has requested pertaining to the Investor's proposed investment in the Company reasonably requested by the Investor have been made available to it. The Investor is aware that no federal or state agency has passed upon the Note (or the Convertible Securities issuable thereunder) or made any finding or determination concerning the fairness of this investment.
f. The Investor has had an opportunity to ask questions of, and receive answers from, representatives of the Company concerning the terms and conditions of this investment, and all such questions have been answered to the full satisfaction of the Investor. The undersigned has relied only on such documents and Investor understands that no written or oral representation or information inconsistent with such information person other than the Company has been authorized to make any representation and if made, such representation may not be relied on unless it is made or furnished in writing and signed by the Company. The Company has not, however, rendered any investment advice to the Investor with respect to the suitability of an investment in the Note (or the Convertible Securities issuable thereunder).
g. The Note (and the Convertible Securities issuable thereunder) for which the Investor hereby subscribes will be acquired for the Investor's own account for investment. The Investor intends to hold the Note (and the Convertible Securities issuable thereunder) for indefinitely and it is not acquiring the Note (or the Convertible Securities issuable thereunder) with a view toward distribution in a manner which would require registration under the Securities Act, and it does not presently have any reasons to anticipate any change in its circumstances or other particular occasion or event which would cause it to sell such Note (or the Convertible Securities issuable thereunder).
h. The Investor is aware that: (i) an investment in the Company involves a high degree of risk; and (ii) no federal, state, local or foreign income tax consequences which may be relevant to it are discussed in any documents provided in connection with the Shares acquisition of the Note (or the Convertible Securities issuable thereunder). Non-US Subscription Agreement
i. The Investor has received no representations or warranties from the Company other than those furnished in writing and if so made, has not been relied uponsigned by the Company.
e. j. The Investor (i) has the capacity to purchase and hold the Note (and the Convertible Securities issuable thereunder) and represents that the acquisition of the Note (and the Convertible Securities issuable thereunder) will not result in any breach of, or violation of the terms or provisions of, or constitute a default under, any indenture or other agreement or instrument by which the Investor or the Investor's property is bound, or violate any applicable law, regulation or court decree; (ii) has obtained such tax advice that the Investor has deemed necessary; and (iii) represents that the Investor's residence is as set forth on the signature page hereof.
k. No consent, approval or authorization of, or filing, registration or qualification with, any court or governmental authority on the part of the Investor is required for the execution and delivery of this Agreement by the Investor and the performance of the Investor's obligations and duties hereunder.
l. The Investor understands that the Shares Company will have the right to rescind the subscription of any investor if any of the representations, warranties, covenants, or agreements contained herein are found to be misleading, false, or incorrect.
m. The Investor has not paid, and will not pay, a commission, finder's fee, or other selling cost or fee to any person in connection with its subscription.
n. The Investor is an "accredited investor" as such term is defined in Regulation D of the Act. Accredited Investors include, but are not limited to:
(i) Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;
(ii) Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer;
(iii) Any natural person whose individual net worth, or joint net worth with that person's spouse, at the time of his purchase exceeds $1,000,000;
(iv) Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in Non-US Subscription Agreement excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year;
(v) Any entity in which all of the equity owners are accredited investors; or
(vi) Any bank as defined in Section 3(a)(2) of the Act (defined below), or savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity.
o. The Investor acknowledges that the Note (and the Convertible Securities issuable thereunder) being offered hereunder have not been registered under the United States Securities Act of 1933, as amended (the "Act"), nor pursuant to and agrees that it will not offer or sell the provisions of Note (or the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained Convertible Securities issuable thereunder) in the Securities Act and in United States to, or for the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”account or benefit of, "U.S. persons" (as such term is defined in Rule 501(a) of Regulation D S promulgated under the Securities Act; herein, "Regulation S") except in accordance with Regulation S under the Act, pursuant to registration under the Act or pursuant to an available exemption from the registration requirements of 1933, as amendedthe Act. The Investor is fully aware that agrees not to engage in hedging transactions involving the Shares to which he or she is subscribing are to be sold shares received pursuant hereto unless in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreementcompliance with the Act. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands acknowledges that the Company has no intention and will not register any transfer of the Note (or the Convertible Securities issuable thereunder) acquired hereunder, unless such transfer is under no obligation made in accordance with Regulation S, pursuant to register its Shares registration under the Securities Act or pursuant to comply with the requirements for any an available exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act Act.
p. The Investor represents and warrants that it has not received offering materials in the United States (which as defined in Regulation S), if it understands is an entity it is formed under the laws of a jurisdiction other than the United States, and that its principal place of business is outside the United States.
q. The Investor represents and warrants that it is not now, a "U.S. person" (as such term is defined in Regulation S) and will that it is not likely be, availableacquiring the Note (or the Convertible Securities issuable thereunder) for the account or benefit of any rule of the Securities and Exchange Commission or any successor theretoU.S. person.
f. r. The Investor understands acknowledges that the certificate(sNote (and any Convertible Securities issuable thereunder) representing the Shares received pursuant to this Agreement will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Companylegend: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE SECURITIES COVERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") ), OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT Non-US Subscription Agreement JURISDICTIONS AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLDOFFERED OR SOLD WITHIN THE UNITED STATES OR TO, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES THE ACCOUNT OR BENEFIT OF, "U.S. PERSONS" (AS DEFINED IN REGULATION S PROMULGATED UNDER THE SECURITIES ACT) EXCEPT IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT, PURSUANT TO REGISTRATION OF THE SECURITIES UNDER THE SECURITIES ACT OR PURSUANT TO AN OPINION AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIREDSECURITIES ACT.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Samples: Subscription Agreement (BBJ Environmental Technologies Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as followsfollows as of the date hereof and as of the Closing Date:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. (a) The Investor is a limited liability limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware. (i) has no need for liquidity in As of the investment in date hereof, the Shares, Investor is the legal and beneficial owner of the Current Shares and (ii) is able as of immediately prior to bear the substantial economic risks Closing, Investor will be the legal and beneficial owner of an investment the Current Shares and any Additional Preferred Shares. The Investor owns and will own the Current Shares (and will own any Additional Preferred Shares when issued) outright and free and clear of any options, contracts, agreements, liens, security interests, mortgages, pledges, charges, equities, claims or restrictions on transferability or encumbrances of any kind, or other encumbrances, other than those contained in the IXX.
(b) The Investor has and will have sole and unrestricted voting power with respect to the Current Shares (and will have sole and unrestricted voting power with respect to any Additional Preferred Shares once issued) and none of the Current Shares is or will be (and none of the Additional Preferred Shares will be once issued) subject to any voting trust or other agreement, arrangement, or restriction with respect to the voting of such shares, except as contemplated by this Agreement or as contained in the Limited Liability Partnership Agreement of the Investor, dated as of December 7, 2015.
(c) The Investor has full right, power, authority and capacity to enter into this Agreement and the IXX Amendment and to consummate the Transaction. All partnership action on the part of the Investor and its equityholders necessary for an indefinite periodthe authorization, execution, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end delivery of this Agreement is and the IXX Amendment, the performance of all obligations of the Investor under this Agreement and the IXX Amendment and the consummation of the Transaction and the transactions contemplated by the IXX Amendment, has been taken. This Agreement and the IXX (as amended by the IXX Amendment when executed and delivered) constitute valid and legally binding obligations of the Investor's true , enforceable against the Investor in accordance with their respective terms.
(d) Entry into this Agreement and correct residencethe IXX Amendment, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss consummation by the Investor of the Transaction, do not and will not (i) violate or conflict with any provision of the organizational documents of the Investor's entire investment in , as amended to the Company;
date of this Agreement, (ii) that there is no guarantee that violate any applicable law binding on the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
Investor, (iii) that violate or constitute a default (or constitute an event which, with notice or lapse of time or both, would violate or constitute a default) under any of the Company has no current plan terms or intention provisions of any loan or credit agreement, indenture, debenture, note, bond, mortgage, deed of trust, lease, sublease, license, contract or other agreement (each, a “Contract”) to issue dividends with respect to which the Shares;
Investor is a party or accelerate the Investor’s obligations under any such Contract or (iv) that there has never been require any representationconsent, guarantee approval, order, or warranty made to the Investor by any brokerauthorization of, the Companyor registration, its agents qualification, declaration, or employees filing with, or any other personnotice to, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;Governmental Authority.
Appears in 1 contract
Samples: Preferred Stock Agreement (TCP-ASC ACHI Series LLLP)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company with respect to the Investor's purchase and acquisition of the Convertible Note, as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY3.1 The undersigned is acquiring the Convertible Note for its own account as principal, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTORnot as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Convertible Note. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANYFurther, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALFthe undersigned does not have any contract, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANYundertaking, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDagreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person with respect to the Note for which the undersigned is purchasing.
b. 3.2 The Investor (i) undersigned has no need for liquidity in full power and authority to enter into this Agreement, the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, execution and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end delivery of this Agreement is the Investor's true and correct residencehas been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the Investor has no present intention of changing such residence to any other state or jurisdictionundersigned.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. 3.3 The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. The Investor understands acknowledges its understanding that the Shares have not been registered under the Securities Act, nor pursuant to the provisions offering and sale of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents Convertible Note is intended to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D be exempt from registration under the Securities Act of 1933, as amended, by virtue of Section 4(2) of the Securities Act and the provisions of Regulation D ("Regulation D") and Regulation S as promulgated thereunder by the United States Securities and Exchange Commission ("SEC"). In furtherance thereof, the undersigned represents and warrants to, and agrees with, the Company as follows:
(a) The undersigned realizes that the basis for the exemption may not be present if, notwithstanding any representations and/or warranties to the contrary herein contained, the undersigned has in mind merely acquiring the Convertible Note for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise;
(b) The undersigned has the financial ability to bear the economic risk of its investment, has adequate means for providing for its current needs and personal contingencies and has no need for liquidity with respect to its investment in the Company;
(c) The undersigned has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Convertible Note. The Investor undersigned also represents it has not been organized for the purpose of acquiring the Convertible Note.
(d) The undersigned has been furnished with the SEC Documents and any and all documents which may have been made available upon request for a reasonable time prior to the date hereof, and the undersigned has carefully read the SEC Documents;
(e) The undersigned has been provided an opportunity for a reasonable time prior to the date hereof to obtain additional information concerning the offering of the Convertible Note, the Company and all other information to the extent the Company possesses such information or could acquire it without unreasonable effort or expense;
(f) The undersigned has been given the opportunity for a reasonable time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Convertible Note, and other matters pertaining to an investment in the Convertible Note, and has been given the opportunity for a reasonable time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information contained in the SEC Documents or that which was otherwise provided in order for it to evaluate the merits and risks of a purchase of the Convertible Note to the extent the Company possesses such information or could acquire it without unreasonable effort or expense;
(g) The undersigned has not been furnished with any oral representation or oral information in connection with the offering of the Convertible Note which is fully aware not contained in the SEC Documents; and
(h) The undersigned has determined that the Shares Convertible Note is a suitable investment for it and that at this time the undersigned could bear a complete loss of such investment.
3.4 The undersigned is not relying on any statements or representations made by the Company with respect to which he economic considerations involved in an investment in the Convertible Note.
3.5 The undersigned will not sell or she is subscribing are to be sold in reliance otherwise transfer the Convertible Note or the shares (the "Shares") of the Company's Common Stock, $.001 par value per share (the "Common Stock") issuable upon such exemptions based upon his the conversion of the Convertible Note without registration under the Securities Act or her representations, warranties an exemption therefrom and agreements set forth in this Agreement. The Investor is the undersigned fully aware understands and agrees that he or she it must bear the economic risk of his or her investment in its purchase because, among other reasons, neither the Company for an indefinite period of time because Convertible Note nor the Shares of Common Stock have not been registered under the Securities Act, Act or under the securities laws of any state and, therefore, cannot be offered resold, pledged, assigned or sold otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states or an exemption unless exemptions from such registration is requirements are available. The Investor further understands In particular, the undersigned is aware that the Convertible Note and Shares are "restricted securities," as such term is defined in Rule 144 promulgated under the Securities Act ("Rule 144"), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as otherwise provided herein, the Company has no intention and is under no obligation to register the Convertible Note or Shares on its behalf or to assist it in complying with any exemption from the registration requirements of the Securities Act or applicable state securities laws. The undersigned further understands that sales or transfers of the Convertible Note and the Shares are further restricted by state securities laws and the provisions of this Agreement.
3.6 No representations or warranties have been made to the undersigned by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations of the Company contained herein and in the SEC Documents, and in purchasing the Convertible Note the undersigned is not relying upon any representations other than those contained herein or in the SEC Documents.
3.7 Any information which the undersigned has heretofore furnished or is simultaneously herewith furnishing to the Company with respect to its financial position and business experience is correct and complete as of the date of this Agreement and, if there should be any material change in such information, it will immediately furnish revised or corrected information to the Company.
3.8 The undersigned understands and agrees that the Convertible Note and the Shares of Common Stock issuable upon conversion of the Convertible Note shall bear a legend substantially similar to the following legend until (a) such securities shall have been registered under the Securities Act or to comply and effectively been disposed of in accordance with the requirements registration statement; or (b) in the opinion of counsel for any exemption that might otherwise the Company such securities may be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 sold without registration under the Securities Act (which it understands is not now, and will not likely be, available) as well as any applicable "Blue Sky" or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Companystate securities laws: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT ), AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES THEY MAY NOT BE OFFERED, SOLD, PLEDGED PLEDGED, HYPOTHECATED, ASSIGNED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACTSECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR AN (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY COMPANY, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE EFFECT COMPANY, THAT SUCH REGISTRATION THE PROPOSED DISPOSITION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the SharesCONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE "BLUE SKY" OR OTHER STATE SECURITIES LAW.
h. 3.9 The Investor undersigned understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and Convertible Note is aware of the following:
(i) that the Shares are a speculative investment and involve which involves a high degree of risk of loss by of its entire investment.
3.10 The undersigned's overall commitment to investments which are not readily marketable is not disproportionate to the Investor of the Investorundersigned's entire net worth, and an investment in the Company;Convertible Note will not cause such overall commitment to become excessive.
(ii) 3.11 The undersigned represents and warrants that there is no guarantee that it has not retained any finder, broker, agent, financial advisor or other intermediary in connection with the Investor will realize any gain from his or her investment in transactions contemplated by this Agreement and agrees to indemnify and hold harmless the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention from liability for any compensation to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securitiesintermediary retained by the undersigned and the fees and expenses of defending against such liability or alleged liability.
3.12 The foregoing representations, or warranties and agreements shall survive the execution of the overall business of the Company;this Agreement.
Appears in 1 contract
Samples: Lease Agreement, Stock Option Plan, Security Agreement, Employment Agreement (Cimetrix Inc)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (a) (i) It is an institutional “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act; (ii) it has no need for liquidity sufficient knowledge and experience in investing in companies similar to the Company so as to be able to evaluate the risks and merits of its investment in the SharesCompany and it is able financially to bear the risks thereof; (iii) it has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management; (iiiv) all documents, records, and information pertaining to its investment in the Common Stock and the Company that have been requested by it, if any, have been made available or delivered to it prior to the date hereof; (v) its financial condition is such that it is able to bear the substantial economic risks risk of an investment in holding the Shares for an indefinite periodperiod of time and can bear the loss of the entire investment in such Shares; (vi) it is not purchasing the Shares as the result of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act or as a result of the Investor’s review of public filings by the Company; (vii) it has independently evaluated the merits of its decision to purchase securities of the Company; (viii) it has not relied on the advice of, or any representations by, any of SVB Leerink LLC, Xxxxxx, Xxxxxxxx & Company, Incorporated, BMO Capital Markets Corp. or Xxxxxxx & Company, LLC (acting in their capacity as placement agents for the Offering, collectively, the “Placement Agents”), or any of their affiliates or any representative of the Placement Agents or their affiliates in making such decision, and (iiiix) at none of the present time, could afford the complete loss Placement Agents nor any of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor their representatives has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining responsibility with respect to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written completeness or oral representation accuracy of any information or information inconsistent with such information has been made or materials furnished to the Investor in connection with the Shares and if so made, has not been relied upon.transactions contemplated hereby;
e. (b) The Investor understands that this Agreement is made in reliance upon the Investor’s express representations, which it hereby represents and warrants to the Company, that (i) the Shares being purchased by the Investor are being acquired for the Investor’s own account (and not on behalf of any other person or entity) for the purpose of investment and not with a view to, or for sale in connection with, the distribution thereof, nor with any present intention of distributing or selling the Shares or any portion thereof, (ii) the Investor was not organized for the specific purpose of acquiring the Shares and (iii) the Shares will not be sold by the Investor without registration under the Securities Act or applicable state securities laws, or an exemption therefrom;
(c) The Investor further understands that the Shares being purchased by the Investor hereunder have not been registered under the Securities Act, nor pursuant to the provisions of the Act or any state securities laws or other laws of any other applicable jurisdictions, and are instead being offered and sold in reliance on exemptions for private offerings contained in an exemption from such registration requirements. The Investor represents and warrants to the Company that, to the Investor’s knowledge, the Investor has not taken any action which could reasonably be expected to cause the sale of the Shares to be sold by the Company to the Investor to fail to qualify as exempt from the registration requirements of the Securities Act. The Investor further understands that until such time as the Shares shall have been registered under the Securities Act and applicable state securities laws or shall have been transferred in the laws accordance with an opinion of such jurisdictions. The Investor represents counsel reasonably satisfactory to the Company that he such registration is an “accredited investor”not required, as stop transfer instructions shall be issued to the Company’s transfer agent and any certificate or certificates representing such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware securities shall bear a restrictive legend stating that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares securities have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under Act and applicable state securities laws and referring to restrictions on the Securities Act or an exemption from such registration is available. transferability and sale thereof.
(d) The Investor further understands that the Company has no intention its representations and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales warranties hereunder will not preclude disposition of the Shares under Rule 144 under the Securities Act (which it understands is not nowwithout registration thereof, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased in compliance with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will (“Rule 144”). The Investor understands and acknowledges, however, that there may not be available for at least one (1) yearwhen the Investor wishes to sell the Shares, and there can be no assurance that or any portion thereof, the conditions necessary adequate current public information with respect to the Company which would permit routine offers or sales of the Shares under such securities pursuant to Rule 144 will ever be satisfied144, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not availabletherefore, compliance with the Securities Act or some other exemption from the registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale and prospectus delivery requirements of the Shares without registration.Securities Act may be required for any such offer or sale; and
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(e) (i) that The Investor is validly existing as a limited partnership in good standing under the Shares are a speculative investment and involve a high degree laws of risk the State of loss by Delaware; (ii) the Investor has all requisite power and authority to execute and deliver this Agreement; and (iii) this Agreement constitutes the valid and legally binding obligation of the Investor's entire investment in the Company;
(ii) that there is no guarantee that , enforceable against the Investor will realize any gain from his or her investment in accordance with its terms, subject to bankruptcy, reorganization, insolvency and other similar laws affecting the Company enforcement of creditors’ rights generally and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length general principles of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;equity.
Appears in 1 contract
Samples: Share Purchase Agreement (Trevi Therapeutics, Inc.)
Representations and Warranties of the Investor. In order to induce As of the Company to accept this Agreementdate of Closing, the Investor hereby represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. (a) The Investor (i) has no need is acquiring its Note and will acquire its Warrant for liquidity in the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true own account, not as nominee or agent, for investment and correct residencenot with a view to, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor for resale in connection with with, any distribution or public offering thereof within the Shares and if so made, has not been relied upon.
e. The Investor understands that the Shares have not been registered under the Securities Act, nor pursuant to the provisions meaning of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amendedamended (the "Securities Act"). By executing this Agreement, the Investor further represents that the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to any such person or to any third person, with respect to the Securities.
(b) The Investor is fully aware understands that (i) the Shares to which he Securities have not been registered under either the Securities Act or she is subscribing are to the securities laws of any state of the United States by reason of specific exemptions therefrom, (ii) the Securities must be sold in reliance upon such exemptions based upon his or her representationsheld by the Investor indefinitely, warranties and agreements set forth in this Agreement. The and, therefore, the Investor is fully aware that he or she must bear the economic risk of his or her such investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Actindefinitely, and, therefore, cannot be offered or sold unless they are subsequently a subsequent disposition thereof is registered under the Securities Act and the securities laws of any applicable state or an exemption is exempt from such registration is available. The Investor further understands registrations; (iii) each certificate that represents the Securities will be endorsed with legends as required by applicable securities laws; and (iv) the Company has no intention and is under no obligation will instruct any transfer agent not to register its Shares under the Securities Act or to comply with the requirements for transfer of any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that unless the certificate(sconditions specified in the foregoing legend are satisfied. For greater certainty, the restrictive legend referred to in clause (iii) representing the Shares will bear shall be substantially in the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Companyform: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE SECURITY (A) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") ), OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT STATE, AND NOT WITH A VIEW IS BEING OFFERED AND SOLD PURSUANT TO THEIR DISTRIBUTION OR RESALE. AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH SHARES LAWS, AND (B) MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, SECURITIES ACT OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT BORROWER THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1c) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised furnished with such materials and has been given access to consult with such information relating to the Company as the Investor has requested. The Investor has been afforded the opportunity to ask questions regarding the Company and the Securities as the Investor has found necessary to make an informed investment decision. The Investor has been solely responsible for his own due diligence investigation of the Company and its business, for his own analysis of the merits and risks of its investment made pursuant to this Agreement and for his own analysis of the terms of its investment.
(d) The Investor is an "accredited investor" within the meaning of Rule 501 under the Securities Act. The Investor is in a financial position to hold the Securities and is able to bear the economic risk and withstand a complete loss of the Investor’s own attorney regarding legal, tax, and other matters concerning an 's investment in the Company and has done so, to the extent the undersigned considers necessary.
k. Securities. The Investor acknowledges and is aware of the following:
(i) recognizes that the Shares are a speculative investment and Securities involve a high degree of risk risk. The Investor is a sophisticated investor, is able to fend for himself in the transaction contemplated by this Agreement, and has such knowledge and experience in financial and business matters that the Investor is capable of loss evaluating the merits and risks of the prospective investment in the Securities.
(e) This Agreement when duly executed and delivered by the Investor Investor, will constitute a valid and binding obligation of the Investor's entire investment , enforceable against the Investor in accordance with its terms, except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the Company;enforcement of, creditors' rights and remedies or by other equitable principles of general application.
(iif) that there is no guarantee that During the period the Investor will realize any gain from his or her investment in holds the Company and that Note, neither the Investor may lose nor any person acting on his behalf (i) has the intention of entering, or her entire investment;
(iii) that the Company has no current plan will enter into, any put option, short position or intention to issue dividends other similar instrument or position with respect to the Shares;
Common Stock that may be acquired upon exercise of the Warrant or (ivii) will use shares of Common Stock that there has never may be acquired upon exercise of the Warrant to settle any put option, short position or other similar instrument or position that may have been any representation, guarantee or warranty made entered into prior to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length execution of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;this Agreement.
Appears in 1 contract
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants with respect to the Company as followsInvestor's purchase of the Securities hereunder that:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. (a) The Investor (i) has no need for liquidity in the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end execution of this Agreement is has been duly authorized by all necessary corporate action on the part of the Investor's true , has been duly executed and correct residencedelivered, and constitutes a valid, binding and enforceable agreement of the Investor, except as such enforceability may be limited by bankruptcy laws and general principles of equity.
(b) The Investor is acquiring the Securities for its own account, for investment, and not with a view to any "distribution" thereof within the meaning of the Securities Act, and the Investor has no present intention of changing such residence to any other state or jurisdictionpresently contemplated agreement, undertaking, arrangement, obligation, indebtedness or commitment providing for the distribution thereof.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor in connection with the Shares and if so made, has not been relied upon.
e. (c) The Investor understands that because the Shares Securities have not been registered under the Securities Act, nor pursuant to the provisions it cannot dispose of any or all of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in Securities unless the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they relevant shares are subsequently registered under the Securities Act or exemptions from such registration are available. The Investor understands that each certificate representing the Securities will bear the following legend or one substantially similar thereto: The securities represented by this certificate have not been registered under the Securities Act of 1933 (the "Act"). These securities have been acquired for investment and not with a view to distribution or resale, and may not be sold, mortgaged, pledged, hypothecated or otherwise transferred without an effective registration statement for such securities under the Act or an opinion of counsel satisfactory to the Company is obtained to the effect that an exemption from such registration requirements is available. .
(d) The Investor further understands is sufficiently knowledgeable and experienced in the making of investments so as to be able to evaluate the risks and merits of its investment in the Company, and is able to bear the economic risk of loss of its investment in the Company.
(e) The Investor has been advised that the Company has no intention Securities have not been and is under no obligation to register its Shares are not being registered under the Securities Act or to comply under the "blue sky" laws of any jurisdiction and that the Company in issuing the Securities is relying upon, among other things, the representations and warranties of the Investor contained in this Section 4.
(f) The Investor acknowledges receipt of the Incorporated Documents (and any other documents filed with the requirements for Commission previously requested by the Investor) and the Offering Memorandum.
(g) The Investor has been afforded the opportunity to ask questions of, and receive answers from, the Company and all of its executed officers and directors and to obtain any exemption additional information, to the extent that might otherwise be availablethe Company possesses such information or could have acquired it, or necessary to supply verify the accuracy of the information contained in any documents delivered to the Investor with any concerning the Company and has in general had access to all information necessary to enable the Investor deemed material to make routine sales an investment decision with respect to the acquisition of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor theretoSecurities.
f. (h) The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books is an "accredited investor" as defined in Rule 501 of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 Regulation D promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registrationAct.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
Appears in 1 contract
Samples: Investment and Registration Rights Agreement (Soros Fund Management LLC)
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to, and agrees with, the Manager and the Company that the following representations, warranties and agreements are true as of the date hereof and will be true as of the Closing Date applicable to the Investor. The Investor further agrees that if any of the following representations or warranties ceases to be true, the Investor will promptly notify the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTEDof the facts pertaining to such changed circumstances.
b. (a) The Investor or its purchaser representative, if any, has been furnished with, and has carefully read, the Confidential Private Placement Memorandum relating to the offering of the Class A Units and other information provided by the Company, the Manager and their affiliates (together with any supplements or amendments thereto issued through the date hereof, the “Information Materials”) and the Company Agreement and has been given the opportunity to (i) ask questions of, and receive answers from, the Manager or any of its affiliates concerning the terms and conditions of the offering of Class A Units and other matters pertaining to an investment in the Company and (ii) obtain any additional information necessary to evaluate the merits and risks of an investment in the Company that the Manager can acquire without unreasonable effort or expense.
(b) In considering a subscription for Class A Units, the Investor (either alone or together with any advisors retained by the Investor in connection with evaluating the merits and risks of prospective investments) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of purchasing a Class A Units and has evaluated for itself such risks and merits, including the risks described in the Information Materials.
(c) The Investor has adequate means of providing for current needs and personal contingencies, has no need for liquidity in the investment in the Sharesinvestment, (ii) and is able to bear the substantial economic risk of an investment in the Company of the size contemplated. In making this statement, the Investor has considered whether it could afford to hold the Class A Units for an indefinite period of time and whether, at this time, the Investor could afford a complete loss of its investment in the Class A Units.
(d) The Investor has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, the Company, the Manager or the Class B Member or any director, officer, employee, agent or affiliate of such persons (including the Information Materials), other than as set forth in the Company Agreement and this Subscription Agreement. The Investor has carefully considered and has, to the extent it believes necessary, discussed with legal, tax, immigration, accounting and financial advisors the suitability of an investment in the Company in light of its particular tax, immigration and financial situation, and has determined that the Class A Units being subscribed for hereunder represent a suitable investment for the Investor.
(e) The Investor’s Class A Units are being acquired for its own account, solely for investment and not with a view to resale or distribution thereof.
(f) The Investor is not subscribing for the Class A Units 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, radio or the Internet or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(g) In connection with the purchase of Class A Units, the Investor meets all suitability standards imposed on it by applicable law. The Investor acknowledges that (i) the offering and sale of the Class A Units have not been and will not be registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), or any applicable state or foreign securities laws and are being made in reliance upon applicable exemptions to the registration requirements of such laws and (ii) the Company will not be registered as an investment company under the Investment Company Act of 1940, as amended (the “Investment Company Act”). The Investor represents and warrants that: (x) (1) it is an “accredited investor” (as defined in Regulation D promulgated under the Securities Act), (2) it has, either alone or with its purchaser representative or representatives, such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Shares for an indefinite periodClass A Units, and and/or (iii3) at it not a “U.S. Person” as that term is defined in Rule 902 promulgated under the present timeSecurities Act (“Rule 902”), could afford (y) the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished relating to the Investor set forth in connection the Investor Suitability Questionnaire delivered with this Subscription Agreement is complete and accurate as of the Shares date set forth on the signature page hereof and if so made, has will be complete and accurate as of the Closing Date applicable to the Investor and (z) it is not been relied upon.
e. The registered and is not required to register as an investment company under the Investment Company Act and is not relying on the exemptions provided by Sections 3(c)(1) or 3(c)(7) of the Investment Company Act as a basis therefor. If the Investor understands that the Shares have is not been registered a “U.S. Person” under the Securities Act, nor pursuant the Investor further represents, warrants and covenants that (A) the Investor is not subscribing Preferred Units for the account or benefit of any person that is a “U.S. Person” under the Securities Act, (B) the offer and sale of Class A Units to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in the Securities Act and in the laws of such jurisdictions. The Investor represents to the Company that he is constitute an “accredited investor”, Offshore Transaction,” as such that term is defined in Rule 501(a902 and/or has been made in conformity with Regulation D and (C) the Investor will resell the Class A Units, in whole or in part, only (1) in accordance with the provisions of applicable non-United States securities laws and regulations, applicable state securities laws and regulations and the LLC Agreement and (2) in accordance with the provisions of Regulation D S (Rules 901 through 905) promulgated under the Securities Act of 1933and the “Preliminary Notes” (as that term is defined in Regulation S), as amended. The Investor is fully aware that the Shares pursuant to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered a registration under the Securities Act or pursuant to an available exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which the representations, warranties and covenants described in the prior sentence being referred to as the “Regulation S Conditions”). To the extent that the Investor does not meet the requirements of Regulation S under the Securities Act (as set forth in Part II of the Investor Suitability Questionnaire), the Subscriber acknowledges that, to the extent applicable, the Company will seek to comply with Rule 506 of Regulation D. In furtherance of these efforts, in the event that subsequent changes to Regulation D require the Company to obtain more information regarding the Subscriber than is provided in the Investor Suitability Questionnaire, the Subscriber will be required to, and agrees to promptly deliver any additional documentation or information, and updates thereto as applicable, that the Company Entities (as defined below) may request in order to comply with Rule 506.
(h) The Investor acknowledges that the Manager and the Company are represented by the same counsel and accepts such dual representation. The Investor further represents and acknowledges that it understands has obtained its own independent legal, immigration, accounting and tax advice regarding this transaction and has relied solely thereon regarding this investment and this transaction.
(i) The Investor represents and warrants that, by acquiring the Class A Units, it will be in a minority position and that such position affords it no voice in the operation of the real estate investments or developments or the operation of the Company.
(j) This Subscription Agreement and the Company Agreement have been duly executed and delivered by the Investor and constitute valid and binding agreements of the Investor, enforceable against the Investor in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
(k) If the Investor is a corporation, limited liability company, partnership, trust or other entity, the Investor is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and the execution, delivery and performance by the Investor of this Subscription Agreement and the Company Agreement are within the Investor’s corporate or other powers, as applicable, have been duly authorized by all necessary corporate or other action on its behalf, require no action by or in respect of, or filing with, any governmental authority (except as disclosed in writing to the Manager), and do not now, and will not likely be, available) or result in a breach of any rule of the Securities and Exchange Commission terms, conditions or provisions of, or constitute a default under, any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books provision of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933any charter, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertakingby-laws, agreement or arrangement relating any license, permit, franchise or certificate, regulation, law, judgment, order, writ, injunction or decree to which the Investor is a party or by which the Investor or any resale of its properties is bound.
(l) If the Investor is an individual, the execution, delivery and performance by the Investor of this Subscription Agreement and the Company Agreement are within the Investor’s legal right, power and capacity, require no action by or other distribution in respect of, or filing with, any governmental authority (except as disclosed in writing to the Manager), and do not and will not result in a breach of any of the Sharesterms, conditions or provisions of, or constitute a default under, any provision of any agreement or any regulation, law, judgment, order, writ, injunction or decree to which the Investor is a party or by which the Investor or any of the Investor’s properties is bound.
h. The (m) If the Investor understands that this Subscription may be accepted is a partnership, grantor trust or rejected in whole or in part S-corporation for U.S. federal income tax purposes, there is no beneficial owner of the Investor, substantially all of the value of whose interest in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares Investor is attributable to the Investor’s Class A Units (direct or indirect) within the meaning of Treasury Regulation Section 1.7704-1(h)(3).
(n) The Investor is not a defined contribution plan (such as a 401(k) plan), governmental pension plan or similar entity.
(o) The Investor acknowledges that the Company seeks to comply with all applicable anti-money laundering laws and regulations. In furtherance of these efforts, the Investor represents, warrants and agrees that (i) no part of the funds used by the Investor to acquire the Class A Units or to satisfy his/her capital commitment obligations with respect thereto has been, or shall survive be, directly or indirectly derived from, or related to, any activity that may contravene United States federal or state or non-United States laws or regulations, including anti-money laundering laws and regulations, and (ii) no capital commitment, contribution or payment to the Investor’s deathCompany by the Investor and no distribution to the Investor shall cause the Company or the Manager to be in violation of any applicable anti-money laundering laws or regulations including, disability without limitation, Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 and the United States Department of the Treasury Office of Foreign Assets Control regulations. The Investor acknowledges and agrees that, notwithstanding anything to the contrary contained in the Company Agreement or insolvencyany other agreement, except that to the extent required by any anti-money laundering law or regulation, the Company and the Manager may prohibit capital contributions, restrict distributions or take any other reasonably necessary or advisable action with respect to the Class A Units, and the Investor shall have no obligations claim, and shall not pursue any claim, against the , the Manager or any other Person in the event that this Subscription is rejected by the Companyconnection therewith.
i. (p) The Investor understands that even if acknowledges that, to the extent applicable, the Company becomes a "reporting company" under and its affiliates, officers and managers (collectively the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares “Company Entities”) will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or seek to comply with the conditions Foreign Account Tax Compliance Act provisions of Rule 144 the Code and any rules, regulations, forms, instructions or take other guidance issued in connection therewith (the “FATCA Provisions”). In furtherance of these efforts, the Investor agrees to promptly deliver any other action necessary additional documentation or information, and updates thereto as applicable, which the Company Entities may request in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult comply with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. FATCA Provisions. The Investor acknowledges and is aware of agrees that, notwithstanding anything to the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment contrary contained in the Company and that Agreement, any side letter or any other agreement, the failure to promptly comply with such requests, or to provide such additional information, may result in the withholding of amounts with respect to, or other limitations on, distributions made to the Investor may lose his and such other reasonably necessary or her entire investment;
(iii) that advisable action by the Company has no current plan Entities or intention to issue dividends the Manager with respect to the Shares;
Class A Units (iv) that there has never been any representationincluding, guarantee or warranty made to without limitation, required withdrawal), and the Investor by shall have no claim, and shall not pursue any brokerclaim, against the Company, its agents or employees the Manager or any other person, expressly or by implication, as to:
(A) Person in connection therewith. If the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors Manager of the Company, or of any other personrelated entity, that will is an FFI (as defined by Treas. Reg. Sec. 1.1471-5(d)) or a Reporting FI (as defined in any way indicate relevant Intergovernmental Agreement for the predictable results Implementation of FATCA (a “Relevant IGA”)), then the Manager shall have all necessary authority to cause the Company to be compliant with Sections 1471 through 1474 of the ownership Code and the Treasury Regulations promulgated thereunder (“FATCA”) and/or such Relevant IGA.
(q) If the Manager of the Shares Company or related entity should become compliant with FATCA and/or a Relevant IGA, then promptly, but in no event more than 10 business days following written request from the Manager, the Investor shall cooperate as requested by the Manager with any actions the Manager (in its sole discretion) determines to be necessary or appropriate to cause the Company or any related entity to become and remain compliant with FATCA and/or such other securitiesRelevant IG; and
(r) Investor agrees that the Company may withhold payments to the Investor in amounts, or of at such times, and in such manner as the overall business of the Company;Manager determines may be required by FATCA.
Appears in 1 contract
Samples: Subscription Agreement
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the Investor hereby Circle F represents and warrants to the Company as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY(a) Any Notes will purchased for investment for Circle F's own account and not with the view to, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (i) has no need or for liquidity in the investment in the Shares, (ii) is able to bear the substantial economic risks of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the investment in the Company reasonably requested by the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor resale in connection with the Shares and if so madewith, has not been relied upon.
e. The Investor any distribution or public offering thereof. Circle F understands that neither the Shares Note nor the Conversion Securities have not been registered under the Securities Act, nor pursuant to the provisions of the Act or any state securities laws or other laws by reason of any other applicable jurisdictions, their contemplated issuance in reliance on exemptions for private offerings contained in transactions exempt from the registration requirements of the Securities Act and in applicable state securities laws and that the laws reliance of such jurisdictions. The Investor represents to the Company and others upon these exemptions is predicated in part upon this representation by Circle F. Circle F further understands that he the Notes and the Conversion Securities may not be transferred or resold without registration under the Securities Act and any applicable state securities laws, or pursuant to an exemption from the requirements of the Securities Act and applicable state securities laws.
(b) Circle F's principal place of business is located at the address set forth on the signature page hereto. Circle F qualifies as an “"accredited investor”, ," as such term is defined in Rule 501(a) 501 of Regulation D under the Securities Act of 1933, as amendedAct. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands Circle F acknowledges that the Company has no intention made available to Circle F at a reasonable time prior to the execution of this Agreement the opportunity to ask questions and is under no obligation to register its Shares under receive answers concerning the Securities Act or to comply with the requirements for any exemption that might otherwise be availablebusiness, or to supply the Investor with any information necessary to enable the Investor to make routine sales operations and financial condition of the Shares under Rule 144 under the Securities Act (which it understands is not now, Company and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales sale of securities for which Rule 144 contemplated by this Agreement and to obtain any additional information requested by such Investor. Circle F is not available, compliance with some other exemption from registration will be required. The Investor understands that able to bear the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions loss of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's its entire investment in the Company;Shares and the Conversion Securities and has such knowledge and experience of financial and business matters that he is capable of evaluating the merits and risks of the investment to be made pursuant to this Agreement. However, neither the foregoing nor any other due diligence investigation conducted by Circle F or on its behalf shall limit, modify or affect the representations and warranties of the Company set forth in Section 4 of this Agreement or the right of Circle F to rely thereon.
(iic) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company This Agreement has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor duly authorized by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience all necessary action on the part of Circle F, has been duly executed and delivered by Circle F and is a valid and binding agreement of Circle F.
(d) Circle F will not permit any of its Affiliates to become an Investor pursuant to this Agreement unless and until such Affiliate agrees to be bound by the officers or directors terms of this Agreement, including without limitation the Companyrepresentations and warranties contained in this Section 5, or of any other person, that will in any way indicate which such representations and warranties shall be true and accurate with respect to such Affiliate at the predictable results of the ownership of the Shares or any time such other securities, or of the overall business of the Company;Affilate makes an Advance hereunder.
Appears in 1 contract
Representations and Warranties of the Investor. In order to induce the Company to accept this Agreement, the The Investor hereby represents and warrants to the Company that: (a) it has full power and authority to enter into and perform this Agreement in accordance with its terms, and it was not organized for the specific purpose of acquiring the Securities; (b) it has sufficient knowledge and experience in investing in companies similar to the Company in terms of the Company’s stage of development so as follows:
a. THE INVESTOR HAS READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND HAS CONSULTED THE INVESTOR'S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISER WITH RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR. THE INVESTOR HAS HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVED ANSWERS FROM THE COMPANY, OR A PERSON OR PERSONS ACTING ON THE COMPANY'S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THIS INVESTMENT AND THE BUSINESS OF THE COMPANY, AND HAS RECEIVED AND REVIEWED ALL ADDITIONAL DOCUMENTATION REGARDING THE BUSINESS AND OPERATIONS OF THE COMPANY THAT HE OR SHE HAS REASONABLY REQUESTED.
b. The Investor (i) has no need for liquidity in the investment in the Shares, (ii) is to be able to bear evaluate the substantial economic risks and merits of an investment in the Shares for an indefinite period, and (iii) at the present time, could afford the complete loss of such investment in the Shares.
c. The address set forth at the end of this Agreement is the Investor's true and correct residence, and the Investor has no present intention of changing such residence to any other state or jurisdiction.
d. The Investor confirms that all documents, records and books pertaining to the its investment in the Company reasonably requested by and it is able financially to bear the Investor have been made available to the Investor. The undersigned has relied only on such documents and that no written or oral representation or information inconsistent with such information has been made or furnished to the Investor risks thereof; (c) in connection with the Shares acquisition of the Warrants, it has made an investigation of the Company and if so madeits business as it deemed necessary and has had an opportunity to discuss and review the Company’s business, has management and financial affairs with the Company’s management as it deemed necessary; (d) the Securities being purchased by it are being acquired for its own account for the purpose of investment and not been relied upon.
e. The Investor with a view to the public resale or distribution thereof within the meaning of the Securities Act; (e) it understands that (i) the Shares Securities have not been registered under the Securities Act by reason of their issuance in a transaction exempt from the registration requirements of the Securities Act pursuant to Section 4(2) thereof or Rule 504, 505 or 506 promulgated under the Securities Act, nor pursuant to the provisions of the securities laws or other laws of any other applicable jurisdictions, in reliance on exemptions for private offerings contained in (ii) under the Securities Act and applicable regulations thereunder the Securities may be resold without registration under the Securities Act only in certain limited circumstances, (iii) the laws of such jurisdictionscertificates evidencing the Securities will bear a legend substantially similar to that set forth below: PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***] DENOTES OMISSIONS. The Investor represents to and (iv) the Company that he will make a notation on its transfer books to such effect; (f) this Agreement has been duly executed and delivered by it and constitutes the legal, valid and binding obligation of it, enforceable in accordance with the terms of the Agreement; and (g) it is an “accredited investor”, ” as such that term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended. The Investor is fully aware that the Shares to which he or she is subscribing are to be sold in reliance upon such exemptions based upon his or her representations, warranties and agreements set forth in this Agreement. The Investor is fully aware that he or she must bear the economic risk of his or her investment in the Company for an indefinite period of time because the Shares have not been registered 501 promulgated under the Securities Act, and, therefore, cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Investor further understands that the Company has no intention and is under no obligation to register its Shares under the Securities Act or to comply with the requirements for any exemption that might otherwise be available, or to supply the Investor with any information necessary to enable the Investor to make routine sales of the Shares under Rule 144 under the Securities Act (which it understands is not now, and will not likely be, available) or any rule of the Securities and Exchange Commission or any successor thereto.
f. The Investor understands that the certificate(s) representing the Shares will bear the following legend restricting its transfer and that a notation restricting such transfer will be made on the stock transfer books of the Company: “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR DISTRIBUTION OR RESALE. SUCH SHARES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.”
g. The Shares are being acquired solely for the Investor's own account, for investment and are not being purchased with a view to or for the resale or other distribution of the Shares; and the Investor has no present plans to enter into any contract, undertaking, agreement or arrangement relating to any resale or other distribution of the Shares.
h. The Investor understands that this Subscription may be accepted or rejected in whole or in part in the sole and absolute discretion of the Company, and this Agreement, unless properly revoked before the completion of the sale of the Shares to the Investor, shall survive the Investor’s death, disability or insolvency, except that the Investor shall have no obligations in the event that this Subscription is rejected by the Company.
i. The Investor understands that even if the Company becomes a "reporting company" under the Securities Exchange Act of 1934, as amended, the provisions of Rule 144 promulgated under the Securities Act permitting resales of the Shares will not be available for at least one (1) year, and there can be no assurance that the conditions necessary to permit routine sales of the Shares under Rule 144 will ever be satisfied, and, if Rule 144 should become available, routine sales made in reliance on its provisions could be made only in limited amounts and in accordance with the terms and conditions of the Rule. The Investor further understands that in connection with sales of securities for which Rule 144 is not available, compliance with some other exemption from registration will be required. The Investor understands that the Company is under no obligation to the undersigned to register the Shares or to comply with the conditions of Rule 144 or take any other action necessary in order to make available any exemption for the sale of the Shares without registration.
j. The Investor has been advised to consult with the Investor’s own attorney regarding legal, tax, and other matters concerning an investment in the Company and has done so, to the extent the undersigned considers necessary.
k. The Investor acknowledges and is aware of the following:
(i) that the Shares are a speculative investment and involve a high degree of risk of loss by the Investor of the Investor's entire investment in the Company;
(ii) that there is no guarantee that the Investor will realize any gain from his or her investment in the Company and that the Investor may lose his or her entire investment;
(iii) that the Company has no current plan or intention to issue dividends with respect to the Shares;
(iv) that there has never been any representation, guarantee or warranty made to the Investor by any broker, the Company, its agents or employees or any other person, expressly or by implication, as to:
(A) the approximate or exact length of time that the Investor will be required to remain as owner of the Shares; or
(B) the past performance or experience on the part of the officers or directors of the Company, or of any other person, that will in any way indicate the predictable results of the ownership of the Shares or any such other securities, or of the overall business of the Company;
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