Representations and Warranties of the Lenders. Each Lender (severally and not jointly) hereby represents and warrants to the Company as follows: 5.1. The Lender has all requisite power and authority to execute and deliver this Agreement and other agreements contemplated hereby or which are ancillary hereto and to consummate the transactions contemplated hereby and thereby. This Agreement constitutes a legal, valid and binding obligation of the Lender, enforceable against the Lender in accordance with its terms. 5.2. The Lender is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”) and that the information contained on the signature page hereto is complete, accurate and true in all respects; 5.3. The Lender has had the opportunity to conduct an independent examination of the Company’s business, financial or legal affairs and condition and recognizes that the Company has a limited operating history and no approved pharmaceuticals, and that an investment in the Company involves a high degree of risk, including, without limitation, that the Company may never conduct an IPO or otherwise effectuate a liquidity event; 5.4. The Lender has been advised that there will be no market for the Conversion Shares and that a market may never develop. The Lender’s overall commitment to investments which are not readily marketable is not disproportionate to his net worth; his investment in the Company will not cause such overall commitment to become excessive; and he can afford to bear the loss of his entire investment in the Company; 5.5. The Lender has adequate means of providing for his current needs and personal contingencies and has no need for liquidity in his investment in the Company; 5.6. The Lender has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of an investment in the Company; 5.7. The Lender confirms that the Company has made available to Lender the opportunity to ask questions of, and receive answers from, the Company concerning the Company and/or the Conversion Shares. In considering its investment in the Company, the Lender has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, the Company, or any director, officer, stockholder, partner, employee, agent, member, or counsel, or any representative or affiliate of any of the foregoing, other than as expressly set forth in this Agreement; 5.8. The Lender hereby acknowledges that the Lender has been advised that the Conversion Shares have not been, and will not be, registered with, or reviewed by, the United States Securities and Exchange Commission (the “SEC”) because the issuance of the Conversion Shares is intended to be a non-public offering pursuant to Section 4(2) and Regulation D under the Securities Act. The Lender represents that, in the event of conversion, the Conversion Shares are being purchased for the Lender’s own account, for investment purposes only and not with a view for distribution or resale to others. The Lender agrees that the Lender will not sell or otherwise transfer the Conversion Shares unless they are registered under the Securities Act or unless in the opinion of counsel satisfactory to the Company an exemption from such registration is available. The Lender understands that the Conversion Shares have not been registered under the Securities Act by reason of a claimed exemption under the provisions of the Securities Act which depends, in part, upon the Lender’s investment intention. 5.9. The Lender understands that neither the SEC nor the securities administrator of any state or governmental entity outside the United States has made any finding or determination relating to the fairness of this investment and that neither the SEC nor any such securities administrator has recommended or endorsed, or will recommend or endorse, the offering and/or issuance of the Conversion Shares, nor have any of them reviewed or passed upon the accuracy or adequacy of this Agreement; 5.10. If the Lender is an entity, the execution, delivery and performance by the Lender of the Agreement has been duly authorized by its Board of Directors or other governing body and validly executed on its behalf; 5.11. The Lender acknowledges that no general solicitation or general advertising (including communications published in any newspaper, magazine, e-mail or by electronic means on the Internet or other broadcast) has been received by him and that no public solicitation or advertisement with respect to the offering of the Conversion Shares has been made to him; 5.12. The Lender has sufficient resources to bear the economic risk of an investment in the Company and in the Conversion Shares for an indefinite period of time, and that this investment is being made for the account of the Lender alone; 5.13. By executing and delivering this Agreement, the Lender covenants to the Company that, except with the prior written permission of the Company, it shall at all times keep confidential and not divulge, furnish or make accessible to anyone any information contained in this Agreement, including the exhibits and attachments thereto; 5.14. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF ANY STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED, DISAPPROVED OR RECOMMENDED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL, THE COMPANY MAY AFFIX ON ANY SHARE CERTIFICATE ISSUED HEREUNDER APPROPRIATE LEGEND EVIDENCING THE ABOVE STATEMENTS; 5.15. The Lender is not a “U.S. Person” as that term is defined in Rule 902 of Regulation S under the Securities Act; and received all communications relating to the issuance of the Conversion Shares, and executed all documents relating thereto, outside the United States; 5.16. Without derogating from the foregoing, each Lender confirms that he/it is either a director of the Company or is considered as an investor for purpose of Section 15A(b)(1) to the Israeli Securities Law 5728–1968 (the "Israeli Securities Law") and he/it understands and confirms the implications thereof; and 5.17. The foregoing representations and warranties are true and accurate as of the date hereof, shall be true and accurate as of the date of delivery of this Agreement and accompanying documents to the Company and shall survive such delivery. If, in any respect, those representations and warranties shall not be true and accurate prior to the conversion and issuance of any shares as provided for in this Agreement, the undersigned shall immediately give written notice to the Company specifying which representations and warranties are not true and accurate and the reason therefor.
Appears in 1 contract
Representations and Warranties of the Lenders. Each Lender (of the Lenders, severally and not jointly) hereby , represents and warrants only as to itself to the Company Borrower as follows:
5.1. The Lender has all requisite power and authority to execute and deliver this Agreement and other agreements contemplated hereby or which are ancillary hereto and to consummate the transactions contemplated hereby and thereby. This Agreement constitutes a legal, valid and binding obligation of the Lender, enforceable against the Lender in accordance with its terms.
5.2. The Lender (a) It is (i) an “"accredited investor” " as such that term is defined in Rule 501 of Regulation D promulgated the Securities Act, and that, in making the purchases contemplated herein, it is specifically understood and agreed that the Lenders is acquiring the Notes and the Warrants for the purpose of investment and not with a view towards the sale or distribution thereof within the meaning of the Securities Act; provided, however, that the disposition of the Lenders' property shall at all times be and remain within its control.
(b) It understands that the Notes and the Warrants will not be registered under the Securities Act, by reason of their issuance by the Borrower in a transaction exempt from the registration requirements of the Securities Act, and that it must hold the Notes and the Warrants indefinitely unless a subsequent disposition thereof is registered under the Securities Act of 1933, as amended and applicable state securities laws or is exempt from registration.
(c) It has not employed any broker or finder in connection with the “Securities Act”transactions contemplated by this Agreement.
(d) and that It has been furnished with or has had access to the information contained on it has requested from the signature page hereto is complete, accurate Borrower and true in all respects;
5.3. The Lender has had the an opportunity to conduct an independent examination discuss with the management of the Company’s business, Borrower the business and financial or legal affairs and condition and recognizes that of the Company has a limited operating history and no approved pharmaceuticalsLoan Parties, and that an investment in the Company involves a high degree of risk, including, without limitation, that the Company may never conduct an IPO or otherwise effectuate a liquidity event;
5.4. The Lender has been advised that there will be no market for the Conversion Shares and that a market may never develop. The Lender’s overall commitment to investments which are not readily marketable is not disproportionate to his net worth; his investment in the Company will not cause such overall commitment to become excessive; and he can afford to bear the loss of his entire investment in the Company;
5.5. The Lender has adequate means of providing for his current needs and personal contingencies and has no need for liquidity in his investment in the Company;
5.6. The Lender has generally such knowledge and experience in business and financial matters and business matters that he is capable of evaluating with respect to investments in securities or privately held companies so as to enable it to understand and evaluate the merits and risks of such investment and form an investment in the Company;
5.7. The Lender confirms decision with respect thereto; provided, however, that the Company has foregoing shall in no way affect, diminish or derogate from the representations and warranties made available by the Borrower hereunder or the right of the Lenders to rely thereon and to seek indemnification hereunder.
(e) Either (i) no part of the funds to be used by such Lender to acquire or hold the opportunity Notes constitutes assets of any "employee benefit plan" within the meaning of Section 3(3) of ERISA or any "plan" within the meaning of Section 4975 of the Code or (ii) the acquisition and holding of the Notes by such Lender is exempt from the restrictions on prohibited transactions of ERISA and the Code pursuant to ask questions ofone or more statutory, regulatory or administrative exemptions.
(f) At least one of the following statements is an accurate representation as to each source of funds (a "Source") to be used by such Lender to pay the purchase price of the Notes and receive answers fromthe Warrants to be purchased by such Lender hereunder:
(i) if such Lender is an insurance company, the Company concerning Source is an "insurance company general account" within the Company and/or meaning of Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employment benefit plan, treating as a single plan, all plans maintained by the Conversion Shares. In considering its investment in same employer or employee organization, with respect to which the Company, amount of the Lender has not relied upon any representations made by, or other information (whether oral or written) furnished general account reserves and liabilities for all contracts held by or on behalf ofof such plan, exceed ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC Annual Statement filed with its state of domicile; or
(ii) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 (issued July 12, 1991) and, except as such Purchaser has disclosed to the Borrower in writing pursuant to this paragraph (b), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or
(iii) the Source constitutes assets of an "investment fund" (within the meaning of Part V of PTE 84-14 (the "QPAM Exemption")) managed by a "qualified professional asset manager" or "QPAM" (within the meaning of Part V of the QPAM Exemption), no employee benefit plan's assets that are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the Companyconditions of Part 1(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Borrower and (i) the identity of such QPAM and (ii) the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to the Borrower in writing pursuant to this paragraph (c); or
(iv) the Source is a governmental plan; or
(v) the Source is one or more employee benefit plans, or any directora separate account or trust fund comprised of one or more employee benefit plans, officer, stockholder, partner, employee, agent, member, each of which has been identified to the Borrower in writing pursuant to this paragraph (e) or counsel, or any representative or affiliate the Source does not include assets of any of the foregoingemployee benefit plan, other than as expressly set forth a plan exempt from the coverage of ERISA. As used in this Agreement;
5.8. The Lender hereby acknowledges that the Lender has been advised that the Conversion Shares have not been, and will not be, registered with, or reviewed byArticle VIA, the United States Securities terms "employee benefit plan", "governmental plan", "party in interest" and Exchange Commission ("separate account" shall have the “SEC”) because the issuance respective meanings assigned to such terms in Section 3 of the Conversion Shares is intended to be a non-public offering pursuant to Section 4(2) and Regulation D under the Securities Act. The Lender represents that, in the event of conversion, the Conversion Shares are being purchased for the Lender’s own account, for investment purposes only and not with a view for distribution or resale to others. The Lender agrees that the Lender will not sell or otherwise transfer the Conversion Shares unless they are registered under the Securities Act or unless in the opinion of counsel satisfactory to the Company an exemption from such registration is available. The Lender understands that the Conversion Shares have not been registered under the Securities Act by reason of a claimed exemption under the provisions of the Securities Act which depends, in part, upon the Lender’s investment intentionERISA.
5.9. The Lender understands that neither the SEC nor the securities administrator of any state or governmental entity outside the United States has made any finding or determination relating to the fairness of this investment and that neither the SEC nor any such securities administrator has recommended or endorsed, or will recommend or endorse, the offering and/or issuance of the Conversion Shares, nor have any of them reviewed or passed upon the accuracy or adequacy of this Agreement;
5.10. If the Lender is an entity, the execution, delivery and performance by the Lender of the Agreement has been duly authorized by its Board of Directors or other governing body and validly executed on its behalf;
5.11. The Lender acknowledges that no general solicitation or general advertising (including communications published in any newspaper, magazine, e-mail or by electronic means on the Internet or other broadcastg) has been received by him and that no public solicitation or advertisement with respect to the offering of the Conversion Shares has been made to him;
5.12. The each Person that is a Lender has sufficient resources to bear the economic risk of an investment in the Company and in the Conversion Shares for an indefinite period of time, and that this investment is being made for the account of the Lender alone;
5.13. By executing and delivering this Agreement, the Lender covenants to the Company that, except with the prior written permission of the Company, it shall at all times keep confidential and not divulge, furnish or make accessible to anyone any information contained in this Agreement, including the exhibits and attachments thereto;
5.14. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF ANY STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED, DISAPPROVED OR RECOMMENDED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL, THE COMPANY MAY AFFIX ON ANY SHARE CERTIFICATE ISSUED HEREUNDER APPROPRIATE LEGEND EVIDENCING THE ABOVE STATEMENTS;
5.15. The Lender is not a “U.S. Person” as that term is defined in Rule 902 of Regulation S under the Securities Act; and received all communications relating to the issuance of the Conversion Shares, and executed all documents relating thereto, outside the United States;
5.16. Without derogating from the foregoing, each Lender confirms that he/it is either a director of the Company or is considered as an investor for purpose of Section 15A(b)(1) to the Israeli Securities Law 5728–1968 (the "Israeli Securities Law") and he/it understands and confirms the implications thereof; and
5.17. The foregoing representations and warranties are true and accurate as of the date hereofOriginal Closing Date, shall such Lender is either not subject to or entitled to a complete exemption from United States withholding tax with respect to payments to be true and accurate as of the date of delivery of made under this Investment Agreement and accompanying documents to the Company and shall survive such delivery. If, in under any respect, those representations and warranties shall not be true and accurate prior to the conversion and issuance of any shares as provided for in this Agreement, the undersigned shall immediately give written notice to the Company specifying which representations and warranties are not true and accurate and the reason thereforNote.
Appears in 1 contract
Representations and Warranties of the Lenders. Each Lender (severally and not jointly) hereby jointly represents and warrants to the Company as followsCorporation that:
5.1. The Lender (a) it has all requisite power duly authorized, executed and authority to execute and deliver delivered this Agreement and other agreements contemplated hereby or which are ancillary hereto and to consummate the transactions contemplated hereby and thereby. This Agreement constitutes a legal, valid and binding obligation such of the LenderTransaction Documents as require execution by such Xxxxxx;
(b) unless otherwise indicated on Exhibit C hereto, enforceable against the Lender in accordance with its terms.
5.2. The such Lender is an “accredited investor” as such term is defined in within the meaning of Rule 501 of Regulation D promulgated under the Securities Act Act, such Lenders was not organized for the specific purpose of 1933acquiring the Notes and Warrants, as amended (the “Securities Act”) and that the information contained on the signature page hereto is complete, accurate and true in all respects;
5.3. The Lender has had the opportunity to conduct an independent examination one or more of the Company’s business, financial or legal affairs and condition and recognizes that the Company has a limited operating history and no approved pharmaceuticals, and that an investment in the Company involves a high degree of risk, including, without limitation, that the Company may never conduct an IPO or otherwise effectuate a liquidity event;
5.4. The Lender has been advised that there will be no market for the Conversion Shares and that a market may never develop. The Lender’s overall commitment to investments which are not readily marketable is not disproportionate to his net worth; his investment in the Company will not cause such overall commitment to become excessive; and he can afford to bear the loss of his entire investment in the Company;
5.5. The Lender has adequate means of providing for his current needs and personal contingencies and has no need for liquidity in his investment in the Company;
5.6. The Lender has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of an investment in the Company;
5.7. The Lender confirms that the Company has made available to Lender the opportunity to ask questions of, and receive answers from, the Company concerning the Company and/or the Conversion Shares. In considering its investment in the Company, the Lender has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, the Company, or any director, officer, stockholder, partner, employee, agent, member, or counsel, or any representative or affiliate of any of the foregoing, other than as expressly categories set forth in this AgreementExhibit C hereto correctly and in all respects describes such Lender and such Lender has so indicated by signing on the blank line or lines following a category on Exhibit C which so describes it;
5.8. The Lender hereby acknowledges (c) it understands that it must bear the Lender has been advised that economic risk of its investment for an indefinite period of time because the Conversion Shares have not beenNotes and Warrants are not, and will not be, registered with, or reviewed by, the United States Securities and Exchange Commission (the “SEC”) because the issuance of the Conversion Shares is intended to be a non-public offering pursuant to Section 4(2) and Regulation D under the Securities Act. The Lender represents thatAct or any applicable state securities laws, in the event of conversion, the Conversion Shares are being purchased for the Lender’s own account, for investment purposes only and may not with a view for distribution or resale to others. The Lender agrees that the Lender will not sell or otherwise transfer the Conversion Shares be resold unless they are subsequently registered under the Securities Act and such applicable state securities laws or unless in the opinion of counsel satisfactory to the Company an exemption from such registration is available. The Lender understands that ;
(d) it has sufficient knowledge and experience in investing in companies similar to the Conversion Shares have not been registered under the Securities Act by reason of a claimed exemption under the provisions Corporation in terms of the Securities Act which dependsCorporation’s stage of development so as to be able to evaluate the risks and merits of its investment in the Corporation and it is able financially to bear the risks thereof;
(e) it or its counsel has had an opportunity to discuss the Corporation’s business, in partmanagement and financial affairs with the Corporation’s management, upon the Lender’s investment intention.
5.9. The Lender understands that neither the SEC nor the securities administrator and has requested, received and reviewed such information, undertaken such investigation and made such further inquiries of any state or governmental entity outside the United States has made any finding or determination relating to the fairness of this investment and that neither the SEC nor any such securities administrator has recommended or endorsed, or will recommend or endorse, the offering and/or issuance officers of the Conversion Shares, nor have any of them reviewed Corporation and others as it has deemed appropriate or passed upon desirable in connection with the accuracy or adequacy of transactions contemplated by this Agreement;
5.10. If (f) the Lender is an entity, Notes and Warrants being issued to it are being acquired for its own account for the execution, delivery purpose of investment and performance by the Lender of the Agreement has been duly authorized by its Board of Directors not with a view to or other governing body and validly executed on its behalffor sale in connection with any distribution thereof;
5.11. The Lender (g) it hereby acknowledges that the Warrants and any shares of Common Stock issuable upon the exercise therof (unless no general solicitation or general advertising (including communications published longer required in any newspaperthe opinion of counsel, magazine, e-mail or by electronic means on the Internet or other broadcast) has been received by him which opinion and that no public solicitation or advertisement with respect counsel shall be reasonably satisfactory to the offering of the Conversion Shares has been made to him;
5.12. The Lender has sufficient resources to Corporation) shall bear the economic risk of an investment a legend substantially in the Company and in the Conversion Shares for an indefinite period of time, and that this investment is being made for the account of the Lender alone;
5.13. By executing and delivering this Agreement, the Lender covenants to the Company that, except with the prior written permission of the Company, it shall at all times keep confidential and not divulge, furnish or make accessible to anyone any information contained in this Agreement, including the exhibits and attachments thereto;
5.14. THE following form: THESE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, ACT OF 1933 OR THE APPLICABLE STATE SECURITIES LAWS OF ANY STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE THESE SECURITIES ARE SUBJECT HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO RESTRICTIONS ON TRANSFERABILITY AND RESALE DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVEDACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS, DISAPPROVED OR RECOMMENDED BY THE AVAILABILITY OF AN EXEMPTION FROM THE REGISTRATION PROVISIONS OF THE SECURITIES ACT OF 1933 AND EXCHANGE COMMISSION, ANY APPLICABLE STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL, THE COMPANY MAY AFFIX ON ANY SHARE CERTIFICATE ISSUED HEREUNDER APPROPRIATE LEGEND EVIDENCING THE ABOVE STATEMENTS;
5.15LAWS. The acquisition by such Lender is not of a “U.S. Person” as that term is defined in Rule 902 of Regulation S under the Securities Act; and received all communications relating to the issuance Warrant shall constitute a confirmation by it of the Conversion Shares, and executed all documents relating thereto, outside the United States;
5.16. Without derogating from the foregoing, each Lender confirms that he/it is either a director of the Company or is considered as an investor for purpose of Section 15A(b)(1) to the Israeli Securities Law 5728–1968 (the "Israeli Securities Law") and he/it understands and confirms the implications thereof; and
5.17. The foregoing representations and warranties are true and accurate as of the date hereof, shall be true and accurate as of if made by such Lender on the date of delivery of this Agreement and accompanying documents to the Company and shall survive such delivery. If, in any respect, those representations and warranties shall not be true and accurate prior to the conversion and issuance of any shares as provided for in this Agreement, the undersigned shall immediately give written notice to the Company specifying which representations and warranties are not true and accurate and the reason thereforacquisition.
Appears in 1 contract
Samples: Credit Agreement (Monterey Capital Acquisition Corp)
Representations and Warranties of the Lenders. Each Lender (Lender, severally and not jointly) , hereby represents and warrants warrants, as to itself but not as to any other Lender, to the Company Borrower as follows:
5.1(a) Any Note issued to a Lender hereunder and any Common Shares issuable upon the conversion of such Note pursuant to Section 4.1 are being acquired for such Lender’s own account, for investment and not with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act. Upon any such conversion, the Lender shall, if so requested by the Borrower, confirm in writing, in a form reasonably satisfactory to the Borrower, that the Common Shares issuable upon such conversion are being acquired for investment and not with a view toward distribution or resale.
(b) The Lender understands that any Note issued to a Lender hereunder and any Common Shares issuable upon the conversion of such Note pursuant to Section 4.1 have not been registered under the Securities Act by reason of their issuance in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act pursuant to Section 4(2) thereof, and that they must be held by the Lender indefinitely, and that the Lender must therefore bear the economic risk of such investment indefinitely, unless a subsequent disposition thereof is registered under the Securities Act or is exempted from such registration.
(c) The Lender has all requisite power such knowledge and authority experience in financial and business matters that it is capable of evaluating the merits and risks of acquiring any Note issued to execute such Lender hereunder and deliver this Agreement any Common Shares issuable upon the conversion of such Note pursuant to Section 4.1 and other agreements contemplated hereby or which are ancillary hereto and to consummate the transactions contemplated hereby and thereby. This Agreement constitutes a legal, valid and binding obligation of the Lender, enforceable against the Lender protecting its interests in accordance with its termsconnection therewith.
5.2. (d) The Lender is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”) and that the information contained on the signature page hereto is complete, accurate and true in all respects;
5.3. The Lender has had the opportunity to conduct an independent examination of the Company’s business, financial or legal affairs and condition and recognizes that the Company has a limited operating history and no approved pharmaceuticals, and that an investment in the Company involves a high degree of risk, including, without limitation, that the Company may never conduct an IPO or otherwise effectuate a liquidity event;
5.4. The Lender has been advised that there will be no market for the Conversion Shares and that a market may never develop. The Lender’s overall commitment to investments which are not readily marketable is not disproportionate to his net worth; his investment in the Company will not cause such overall commitment to become excessive; and he can afford to bear the loss of his entire investment in the Company;
5.5. The Lender has adequate means of providing for his current needs and personal contingencies and has no need for liquidity in his investment in the Company;
5.6. The Lender has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of an investment in the Company;
5.7. The Lender confirms that the Company has made available to Lender the opportunity to ask questions of, and receive answers from, the Company concerning the Company and/or the Conversion Shares. In considering its investment in the Company, the Lender has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, the Company, or any director, officer, stockholder, partner, employee, agent, member, or counsel, or any representative or affiliate of any of the foregoing, other than as expressly set forth in this Agreement;
5.8. The Lender hereby acknowledges that the Lender has been advised that the Conversion Shares have not been, and will not be, registered with, or reviewed by, the United States Securities and Exchange Commission (the “SEC”) because the issuance of the Conversion Shares is intended to be a non-public offering pursuant to Section 4(2) and Regulation D under the Securities Act. The Lender represents that, in the event of conversion, the Conversion Shares are being purchased for the Lender’s own account, for investment purposes only and not with a view for distribution or resale to others. The Lender agrees that the Lender will not sell or otherwise transfer the Conversion Shares unless they are registered under the Securities Act or unless in the opinion of counsel satisfactory to the Company an exemption from such registration is available. The Lender understands that the Conversion Shares have not been registered under the Securities Act by reason of a claimed exemption under the provisions of the Securities Act which depends, in part, upon the Lender’s investment intention.
5.9. The Lender understands that neither the SEC nor the securities administrator of any state or governmental entity outside the United States has made any finding or determination relating to the fairness of this investment and that neither the SEC nor any such securities administrator has recommended or endorsed, or will recommend or endorse, the offering and/or issuance of the Conversion Shares, nor have any of them reviewed or passed upon the accuracy or adequacy of this Agreement;
5.10. If the Lender is an entity, the execution, delivery and performance by the Lender of the Agreement has been duly authorized by its Board of Directors or other governing body and validly executed on its behalf;
5.11. The Lender acknowledges that no general solicitation or general advertising (including communications published in any newspaper, magazine, e-mail or by electronic means on the Internet or other broadcast) has been received by him and that no public solicitation or advertisement with respect to the offering of the Conversion Shares has been made to him;
5.12. The Lender has sufficient resources to bear the economic risk of an investment in the Company and in the Conversion Shares for an indefinite period of time, and that this investment is being made for the account of the Lender alone;
5.13. By executing and delivering this Agreement, the Lender covenants to the Company that, except with the prior written permission of the Company, it shall at all times keep confidential and not divulge, furnish or make accessible to anyone any information contained in this Agreement, including the exhibits and attachments thereto;
5.14. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF ANY STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED, DISAPPROVED OR RECOMMENDED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL, THE COMPANY MAY AFFIX ON ANY SHARE CERTIFICATE ISSUED HEREUNDER APPROPRIATE LEGEND EVIDENCING THE ABOVE STATEMENTS;
5.15. The Lender is not a “U.S. Person” as that term is defined in Rule 902 of Regulation S under the Securities Act; and received all communications relating to the issuance of the Conversion Shares, and executed all documents relating thereto, outside the United States;
5.16. Without derogating from the foregoing, each Lender confirms that he/it is either a director of the Company or is considered as an investor for purpose of Section 15A(b)(1) to the Israeli Securities Law 5728–1968 (the "Israeli Securities Law") and he/it understands and confirms the implications thereof; and
5.17. The foregoing representations and warranties are true and accurate as of the date hereof, shall be true and accurate as of the date of delivery of this Agreement and accompanying documents to the Company and shall survive such delivery. If, in any respect, those representations and warranties shall not be true and accurate prior to the conversion and issuance of any shares as provided for in this Agreement, the undersigned shall immediately give written notice to the Company specifying which representations and warranties are not true and accurate and the reason therefor.
Appears in 1 contract
Representations and Warranties of the Lenders. Each Lender (of the Lenders, severally and not jointly) hereby , represents and warrants only as to itself to the Company Borrowers as follows:
5.1. The Lender has all requisite power and authority to execute and deliver this Agreement and other agreements contemplated hereby or which are ancillary hereto and to consummate the transactions contemplated hereby and thereby. This Agreement constitutes a legal, valid and binding obligation of the Lender, enforceable against the Lender in accordance with its terms.
5.2. The Lender (a) It is (i) an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”) and that the information contained on the signature page hereto is complete, accurate and true in all respects;
5.3. The Lender has had the opportunity to conduct an independent examination of the Company’s business, financial or legal affairs and condition and recognizes that the Company has a limited operating history and no approved pharmaceuticals, and that an investment in the Company involves a high degree of risk, including, without limitation, that the Company may never conduct an IPO or otherwise effectuate a liquidity event;
5.4. The Lender has been advised that there will be no market for the Conversion Shares and that a market may never develop. The Lender’s overall commitment to investments which are not readily marketable is not disproportionate to his net worth; his investment in the Company will not cause such overall commitment to become excessive; and he can afford to bear the loss of his entire investment in the Company;
5.5. The Lender has adequate means of providing for his current needs and personal contingencies and has no need for liquidity in his investment in the Company;
5.6. The Lender has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of an investment in the Company;
5.7. The Lender confirms that the Company has made available to Lender the opportunity to ask questions of, and receive answers from, the Company concerning the Company and/or the Conversion Shares. In considering its investment in the Company, the Lender has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, the Company, or any director, officer, stockholder, partner, employee, agent, member, or counsel, or any representative or affiliate of any of the foregoing, other than as expressly set forth in this Agreement;
5.8. The Lender hereby acknowledges that the Lender has been advised that the Conversion Shares have not been, and will not be, registered with, or reviewed by, the United States Securities and Exchange Commission (the “SEC”) because the issuance of the Conversion Shares is intended to be a non-public offering pursuant to Section 4(2) and Regulation D under the Securities Act. The Lender represents that, in the event of conversion, the Conversion Shares are being purchased for the Lender’s own account, for investment purposes only and not with a view for distribution or resale to others. The Lender agrees that the Lender will not sell or otherwise transfer the Conversion Shares unless they are registered under the Securities Act or unless in the opinion of counsel satisfactory to the Company an exemption from such registration is available. The Lender understands that the Conversion Shares have not been registered under the Securities Act by reason of a claimed exemption under the provisions of the Securities Act which depends, in part, upon the Lender’s investment intention.
5.9. The Lender understands that neither the SEC nor the securities administrator of any state or governmental entity outside the United States has made any finding or determination relating to the fairness of this investment and that neither the SEC nor any such securities administrator has recommended or endorsed, or will recommend or endorse, the offering and/or issuance of the Conversion Shares, nor have any of them reviewed or passed upon the accuracy or adequacy of this Agreement;
5.10. If the Lender is an entity, the execution, delivery and performance by the Lender of the Agreement has been duly authorized by its Board of Directors or other governing body and validly executed on its behalf;
5.11. The Lender acknowledges that no general solicitation or general advertising (including communications published in any newspaper, magazine, e-mail or by electronic means on the Internet or other broadcast) has been received by him and that no public solicitation or advertisement with respect to the offering of the Conversion Shares has been made to him;
5.12. The Lender has sufficient resources to bear the economic risk of an investment in the Company and in the Conversion Shares for an indefinite period of time, and that this investment is being made for the account of the Lender alone;
5.13. By executing and delivering this Agreement, the Lender covenants to the Company that, except with the prior written permission of the Company, it shall at all times keep confidential and not divulge, furnish or make accessible to anyone any information contained in this Agreement, including the exhibits and attachments thereto;
5.14. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF ANY STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED, DISAPPROVED OR RECOMMENDED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL, THE COMPANY MAY AFFIX ON ANY SHARE CERTIFICATE ISSUED HEREUNDER APPROPRIATE LEGEND EVIDENCING THE ABOVE STATEMENTS;
5.15. The Lender is not a “U.S. Person” as that term is defined in Rule 902 501 of Regulation S the Securities Act, and that, in making the purchases contemplated herein, it is specifically understood and agreed that the Lenders is acquiring the Notes for the purpose of investment and not with a view towards the sale or distribution thereof within the meaning of the Securities Act; provided, however, that the disposition of the Lenders’ property shall at all times be and remain within its control.
(b) It understands that the Notes will not be registered under the Securities Act; , by reason of their issuance by the Borrowers in a transaction exempt from the registration requirements of the Securities Act, and received all communications relating that it must hold the Notes indefinitely unless a subsequent disposition thereof is registered under the Securities Act and applicable state securities laws or is exempt from registration.
(c) It has not employed any broker or finder in connection with the transactions contemplated by this Agreement.
(d) It has been furnished with or has had access to the issuance information it has requested from the Borrowers and has had an opportunity to discuss with the management of the Conversion SharesBorrowers the business and financial affairs of the Loan Parties, and executed all documents relating has generally such knowledge and experience in business and financial matters and with respect to investments in securities or privately held companies so as to enable it to understand and evaluate the risks of such investment and form an investment decision with respect thereto; provided, outside however, that the United States;
5.16. Without derogating foregoing shall in no way affect, diminish or derogate from the foregoing, each Lender confirms that he/it is either a director of the Company or is considered as an investor for purpose of Section 15A(b)(1) to the Israeli Securities Law 5728–1968 (the "Israeli Securities Law") and he/it understands and confirms the implications thereof; and
5.17. The foregoing representations and warranties are true and accurate as made by the Borrowers hereunder or the right of the date hereof, shall be true Lenders to rely thereon and accurate as to seek indemnification hereunder.
(e) Either (i) no part of the date of delivery of this Agreement and accompanying documents funds to be used by such Lender to acquire or hold the Company and shall survive such delivery. If, in any respect, those representations and warranties shall not be true and accurate prior to the conversion and issuance Notes constitutes assets of any shares as provided for in this Agreement, “employee benefit plan” within the undersigned shall immediately give written notice to meaning of Section 3(3) of ERISA or any “plan” within the Company specifying which representations meaning of Section 4975 of the Code or (ii) the acquisition and warranties are not true and accurate holding of the Notes by such Lender is exempt from the restrictions on prohibited transactions of ERISA and the reason thereforCode pursuant to one or more statutory, regulatory or administrative exemptions.
Appears in 1 contract
Samples: Investment Agreement (Parent Co)
Representations and Warranties of the Lenders. Each Lender (Lender, severally and not jointly) hereby , represents and warrants to the Company as followsthat:
5.1. The Lender has all requisite power (a) All action, corporate or otherwise, on the part of such Lender, and authority to execute its officers, directors, and deliver shareholders or partners, as the case may be, necessary for the authorization, execution and delivery of this Agreement and other agreements contemplated hereby the performance of all obligations of such Lender hereunder, has been taken or will be taken prior to the Closing Date and this Agreement and the Loan Documents to which are ancillary hereto and to consummate the transactions contemplated hereby and thereby. This Agreement constitutes such Lender is a legalparty, when executed, constitute valid and legally binding obligation obligations of the such Lender, enforceable against the such Lender in accordance with its their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). The execution and delivery of this Agreement, including the Loan Documents to which such Lender is a party, will not conflict with, or result in a breach of any of the terms of, or constitute a default under, the charter, bylaws or other organizational documents of such Lender.
5.2. The Lender is an “accredited investor” as (b) It has such term is defined knowledge, skill and experience in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”) and that the information contained on the signature page hereto is complete, accurate and true in all respects;
5.3. The Lender has had the opportunity to conduct an independent examination of the Company’s business, financial or legal affairs and condition and recognizes investment matters so that the Company has a limited operating history and no approved pharmaceuticals, and that an investment in the Company involves a high degree of risk, including, without limitation, that the Company may never conduct an IPO or otherwise effectuate a liquidity event;
5.4. The Lender has been advised that there will be no market for the Conversion Shares and that a market may never develop. The Lender’s overall commitment to investments which are not readily marketable is not disproportionate to his net worth; his investment in the Company will not cause such overall commitment to become excessive; and he can afford to bear the loss of his entire investment in the Company;
5.5. The Lender has adequate means of providing for his current needs and personal contingencies and has no need for liquidity in his investment in the Company;
5.6. The Lender has such knowledge and experience in financial and business matters that he it is capable of evaluating the merits and risks of an investment in the Company;Notes and the Warrants.
5.7. The Lender confirms that the Company (c) It has made available such independent investigation of the Company, its management, and related matters as it deems to be necessary or advisable in connection with an investment in the Notes and the Warrants; and each Lender has received all information and data which it believes to be necessary in order to reach an informed decision as to the advisability of an investment in the Notes and the Warrants.
(d) It had the opportunity to ask questions of, and receive answers from, the Company concerning the Company and/or the Conversion Shares. In considering its investment in discuss the Company, the Lender has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, 's business with the Company's senior executives.
(e) The Notes and the Warrants are being acquired for investment only and not for resale or with a view to.the distribution thereof, or any director, officer, stockholder, partner, employee, agent, member, or counsel, or any representative or affiliate of any of except as the foregoing, other than as expressly set forth same may be made in this Agreement;compliance with all applicable securities laws.
5.8. The Lender hereby acknowledges that the Lender (I) It has been advised that the Conversion Shares have Notes and the Warrants are not been, and will not be, registered with, or reviewed by, the United States Securities and Exchange Commission (the “SEC”) because the issuance of the Conversion Shares is intended to be a non-public offering pursuant to Section 4(2) and Regulation D under the Securities Act. The Lender represents that, in the event of conversion, the Conversion Shares are being purchased for the Lender’s own account, for investment purposes only and not with a view for distribution or resale to others. The Lender agrees that the Lender will not sell or otherwise transfer the Conversion Shares unless they are registered under the Securities Act on the grounds that this transaction is exempt under the Act as not involving any public offering.
(g) It has been advised that the Notes and the Warrants may not be sold or offered for sale in the absence of an effective registration statement as to the securities under the Act and any applicable state securities acts or the availability of an exemption from the registration requirements under the Act and any applicable state securities acts.
(h) It is an "accredited investor" within the meaning of Rule 501 under the Act.
(i) Such Lender understands that the Notes and the Warrants will be "restricted securities" under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Act only in certain limited circumstances. Such Lender acknowledges that the securities must be held indefinitely unless subsequently registered under the Act or unless in the opinion of counsel satisfactory to the Company an exemption from such registration is available. The Such Lender understands that the Conversion Shares have not been registered under the Securities Act by reason is aware of a claimed exemption under the provisions of Rule 144 promulgated under the Securities Act which depends, permit limited resale of shares purchased in part, upon the Lender’s investment intention.
5.9. The Lender understands that neither the SEC nor the securities administrator of any state or governmental entity outside the United States has made any finding or determination relating a private placement subject to the fairness satisfaction of this investment and that neither the SEC nor any such securities administrator has recommended or endorsed, or will recommend or endorse, the offering and/or issuance of the Conversion Shares, nor have any of them reviewed or passed upon the accuracy or adequacy of this Agreement;
5.10. If the Lender is an entity, the execution, delivery and performance by the Lender of the Agreement has been duly authorized by its Board of Directors or other governing body and validly executed on its behalf;
5.11. The Lender acknowledges that no general solicitation or general advertising (including communications published in any newspaper, magazine, e-mail or by electronic means on the Internet or other broadcast) has been received by him and that no public solicitation or advertisement with respect to the offering of the Conversion Shares has been made to him;
5.12. The Lender has sufficient resources to bear the economic risk of an investment in the Company and in the Conversion Shares for an indefinite period of time, and that this investment is being made for the account of the Lender alone;
5.13. By executing and delivering this Agreement, the Lender covenants to the Company that, except with the prior written permission of the Company, it shall at all times keep confidential and not divulge, furnish or make accessible to anyone any information contained in this Agreement, including the exhibits and attachments thereto;
5.14. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF ANY STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED, DISAPPROVED OR RECOMMENDED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL, THE COMPANY MAY AFFIX ON ANY SHARE CERTIFICATE ISSUED HEREUNDER APPROPRIATE LEGEND EVIDENCING THE ABOVE STATEMENTS;
5.15. The Lender is not a “U.S. Person” as that term is defined in Rule 902 of Regulation S under the Securities Act; and received all communications relating to the issuance of the Conversion Shares, and executed all documents relating thereto, outside the United States;
5.16. Without derogating from the foregoing, each Lender confirms that he/it is either a director of the Company or is considered as an investor for purpose of Section 15A(b)(1) to the Israeli Securities Law 5728–1968 (the "Israeli Securities Law") and he/it understands and confirms the implications thereof; and
5.17. The foregoing representations and warranties are true and accurate as of the date hereof, shall be true and accurate as of the date of delivery of this Agreement and accompanying documents to the Company and shall survive such delivery. If, in any respect, those representations and warranties shall not be true and accurate prior to the conversion and issuance of any shares as provided for in this Agreement, the undersigned shall immediately give written notice to the Company specifying which representations and warranties are not true and accurate and the reason thereforcertain conditions.
Appears in 1 contract
Representations and Warranties of the Lenders. Each Lender (of the Lenders, severally and not jointly) hereby , represents and warrants only as to itself to the Company as follows:
5.1. The Lender has all requisite power and authority to execute and deliver this Agreement and other agreements contemplated hereby or which are ancillary hereto and to consummate the transactions contemplated hereby and thereby. This Agreement constitutes a legal, valid and binding obligation of the Lender, enforceable against the Lender in accordance with its terms.
5.2. The Lender (a) It is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”) and that the information contained on the signature page hereto is complete, accurate and true in all respects;
5.3. The Lender has had the opportunity to conduct an independent examination of the Company’s business, financial or legal affairs and condition and recognizes that the Company has a limited operating history and no approved pharmaceuticals, and that an investment in the Company involves a high degree of risk, including, without limitation, that the Company may never conduct an IPO or otherwise effectuate a liquidity event;
5.4. The Lender has been advised that there will be no market for the Conversion Shares and that a market may never develop. The Lender’s overall commitment to investments which are not readily marketable is not disproportionate to his net worth; his investment in the Company will not cause such overall commitment to become excessive; and he can afford to bear the loss of his entire investment in the Company;
5.5. The Lender has adequate means of providing for his current needs and personal contingencies and has no need for liquidity in his investment in the Company;
5.6. The Lender has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of an investment in the Company;
5.7. The Lender confirms that the Company has made available to Lender the opportunity to ask questions of, and receive answers from, the Company concerning the Company and/or the Conversion Shares. In considering its investment in the Company, the Lender has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, the Company, or any director, officer, stockholder, partner, employee, agent, member, or counsel, or any representative or affiliate of any of the foregoing, other than as expressly set forth in this Agreement;
5.8. The Lender hereby acknowledges that the Lender has been advised that the Conversion Shares have not been, and will not be, registered with, or reviewed by, the United States Securities and Exchange Commission (the “SEC”) because the issuance of the Conversion Shares is intended to be a non-public offering pursuant to Section 4(2) and Regulation D under the Securities Act. The Lender represents that, in the event of conversion, the Conversion Shares are being purchased for the Lender’s own account, for investment purposes only and not with a view for distribution or resale to others. The Lender agrees that the Lender will not sell or otherwise transfer the Conversion Shares unless they are registered under the Securities Act or unless in the opinion of counsel satisfactory to the Company an exemption from such registration is available. The Lender understands that the Conversion Shares have not been registered under the Securities Act by reason of a claimed exemption under the provisions of the Securities Act which depends, in part, upon the Lender’s investment intention.
5.9. The Lender understands that neither the SEC nor the securities administrator of any state or governmental entity outside the United States has made any finding or determination relating to the fairness of this investment and that neither the SEC nor any such securities administrator has recommended or endorsed, or will recommend or endorse, the offering and/or issuance of the Conversion Shares, nor have any of them reviewed or passed upon the accuracy or adequacy of this Agreement;
5.10. If the Lender is an entity, the execution, delivery and performance by the Lender of the Agreement has been duly authorized by its Board of Directors or other governing body and validly executed on its behalf;
5.11. The Lender acknowledges that no general solicitation or general advertising (including communications published in any newspaper, magazine, e-mail or by electronic means on the Internet or other broadcast) has been received by him and that no public solicitation or advertisement with respect to the offering of the Conversion Shares has been made to him;
5.12. The Lender has sufficient resources to bear the economic risk of an investment in the Company and in the Conversion Shares for an indefinite period of time, and that this investment is being made for the account of the Lender alone;
5.13. By executing and delivering this Agreement, the Lender covenants to the Company that, except with the prior written permission of the Company, it shall at all times keep confidential and not divulge, furnish or make accessible to anyone any information contained in this Agreement, including the exhibits and attachments thereto;
5.14. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF ANY STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED, DISAPPROVED OR RECOMMENDED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL, THE COMPANY MAY AFFIX ON ANY SHARE CERTIFICATE ISSUED HEREUNDER APPROPRIATE LEGEND EVIDENCING THE ABOVE STATEMENTS;
5.15. The Lender is not a “U.S. Person” as that term is defined in Rule 902 501 of Regulation S the Securities Act, and that, in making the purchases contemplated herein, it is specifically understood and agreed that the Lenders is acquiring the Notes for the purpose of investment and not with a view towards the sale or distribution thereof within the meaning of the Securities Act; provided, however, that the disposition of the Lenders’ property shall at all times be and remain within its control.
(b) It understands that the Notes will not be registered under the Securities Act; , by reason of their issuance by the Company in a transaction exempt from the registration requirements of the Securities Act, and received all communications relating that it must hold the Notes indefinitely unless a subsequent disposition thereof is registered under the Securities Act and applicable state securities laws or is exempt from registration.
(c) It has not employed any broker or finder in connection with the transactions contemplated by this Agreement.
(d) It has been furnished with or has had access to the issuance of the Conversion Shares, and executed all documents relating thereto, outside the United States;
5.16. Without derogating information it has requested from the foregoing, each Lender confirms that he/it is either a director Company and has had an opportunity to discuss with the management of the Company the business and financial affairs of the Credit Parties, and has generally such knowledge and experience in business and financial matters and with respect to investments in securities or is considered privately held companies so as to enable it to understand and evaluate the risks of such investment and form an investor for purpose of Section 15A(b)(1) to investment decision with respect thereto; provided, however, that the Israeli Securities Law 5728–1968 (foregoing shall in no way affect, diminish or derogate from the "Israeli Securities Law") and he/it understands and confirms the implications thereof; and
5.17. The foregoing representations and warranties are true and accurate as made by the Company hereunder or the right of the date hereof, shall be true Lenders to rely thereon and accurate as to seek indemnification hereunder.
(e) Either (i) no part of the date of delivery of this Agreement and accompanying documents funds to be used by such Lender to acquire or hold the Company and shall survive such delivery. If, in any respect, those representations and warranties shall not be true and accurate prior to the conversion and issuance Notes constitutes assets of any shares as provided for in this Agreement, “employee benefit plan” within the undersigned shall immediately give written notice to meaning of Section 3(3) of ERISA or any “plan” within the Company specifying which representations meaning of Section 4975 of the Code or (ii) the acquisition and warranties are not true and accurate holding of the Notes by such Lender is exempt from the restrictions on prohibited transactions of ERISA and the reason thereforCode pursuant to one or more statutory, regulatory or administrative exemptions.
Appears in 1 contract
Samples: Investment Agreement (Palace Entertainment Holdings, Inc.)
Representations and Warranties of the Lenders. Each Lender (of the Lenders, severally and not jointly) hereby , represents and warrants only as to itself to the Company Borrower as follows:
5.1. The Lender has all requisite power and authority to execute and deliver this Agreement and other agreements contemplated hereby or which are ancillary hereto and to consummate the transactions contemplated hereby and thereby. This Agreement constitutes a legal, valid and binding obligation of the Lender, enforceable against the Lender in accordance with its terms.
5.2. The Lender (a) It is (i) an “"accredited investor” " as such that term is defined in Rule 501 of Regulation D promulgated the Securities Act, and that, in making the purchases contemplated herein, it is specifically understood and agreed that the Lenders is acquiring the Notes for the purpose of investment and not with a view towards the sale or distribution thereof within the meaning of the Securities Act; provided, however, that the disposition of the Lenders’ property shall at all times be and remain within its control.
(b) It understands that the Notes will not be registered under the Securities Act, by reason of their issuance by the Borrower in a transaction exempt from the registration requirements of the Securities Act, and that it must hold the Notes indefinitely unless a subsequent disposition thereof is registered under the Securities Act of 1933, as amended and applicable state securities laws or is exempt from registration.
(c) It has not employed any broker or finder in connection with the “Securities Act”transactions contemplated by this Agreement.
(d) and that It has been furnished with or has had access to the information contained on it has requested from the signature page hereto is complete, accurate Borrower and true in all respects;
5.3. The Lender has had the an opportunity to conduct an independent examination discuss with the management of the Company’s business, Borrower the business and financial or legal affairs and condition and recognizes that of the Company has a limited operating history and no approved pharmaceuticalsLoan Parties, and that an investment in the Company involves a high degree of risk, including, without limitation, that the Company may never conduct an IPO or otherwise effectuate a liquidity event;
5.4. The Lender has been advised that there will be no market for the Conversion Shares and that a market may never develop. The Lender’s overall commitment to investments which are not readily marketable is not disproportionate to his net worth; his investment in the Company will not cause such overall commitment to become excessive; and he can afford to bear the loss of his entire investment in the Company;
5.5. The Lender has adequate means of providing for his current needs and personal contingencies and has no need for liquidity in his investment in the Company;
5.6. The Lender has generally such knowledge and experience in business and financial matters and business matters that he is capable of evaluating with respect to investments in securities or privately held companies so as to enable it to understand and evaluate the merits and risks of such investment and form an investment in the Company;
5.7. The Lender confirms decision with respect thereto; provided, however, that the Company has foregoing shall in no way affect, diminish or derogate from the representations and warranties made available by the Borrower hereunder or the right of the Lenders to rely thereon and to seek indemnification hereunder.
(e) Either (i) no part of the funds to be used by such Lender to acquire or hold the opportunity Notes constitutes assets of any "employee benefit plan" within the meaning of Section 3(3) of ERISA or any "plan" within the meaning of Section 4975 of the Code or (ii) the acquisition and holding of the Notes by such Lender is exempt from the restrictions on prohibited transactions of ERISA and the Code pursuant to ask questions ofone or more statutory, and receive answers fromregulatory or administrative exemptions.
(f) At least one of the following statements is an accurate representation as to each source of funds (a "Source") to be used by such Lender to pay the purchase price of the Notes to be purchased by such Lender hereunder:
(i) if such Lender is an insurance company, the Company concerning Source is an "insurance company general account" within the Company and/or meaning of Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employment benefit plan, treating as a single plan, all plans maintained by the Conversion Shares. In considering its investment in same employer or employee organization, with respect to which the Company, amount of the Lender has not relied upon any representations made by, or other information (whether oral or written) furnished general account reserves and liabilities for all contracts held by or on behalf ofof such plan, exceed ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC Annual Statement filed with its state of domicile; or
(ii) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 (issued July 12, 1991) and, except as such Purchaser has disclosed to the Borrower in writing pursuant to this paragraph (b), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or
(iii) the Source constitutes assets of an "investment fund" (within the meaning of Part V of PTE 84-14 (the "QPAM Exemption")) managed by a "qualified professional asset manager" or "QPAM" (within the meaning of Part V of the QPAM Exemption), no employee benefit plan’s assets that are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the Companyconditions of Part 1(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Borrower and (i) the identity of such QPAM and (ii) the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to the Borrower in writing pursuant to this paragraph (c); or
(iv) the Source is a governmental plan; or
(v) the Source is one or more employee benefit plans, or any directora separate account or trust fund comprised of one or more employee benefit plans, officer, stockholder, partner, employee, agent, member, each of which has been identified to the Borrower in writing pursuant to this paragraph (e) or counsel, or any representative or affiliate the Source does not include assets of any of the foregoingemployee benefit plan, other than as expressly set forth a plan exempt from the coverage of ERISA. As used in this Agreement;
5.8. The Lender hereby acknowledges that the Lender has been advised that the Conversion Shares have not been, and will not be, registered with, or reviewed byArticle VIA, the United States Securities terms "employee benefit plan", "governmental plan", "party in interest" and Exchange Commission ("separate account" shall have the “SEC”) because the issuance respective meanings assigned to such terms in Section 3 of the Conversion Shares is intended to be a non-public offering pursuant to Section 4(2) and Regulation D under the Securities Act. The Lender represents that, in the event of conversion, the Conversion Shares are being purchased for the Lender’s own account, for investment purposes only and not with a view for distribution or resale to others. The Lender agrees that the Lender will not sell or otherwise transfer the Conversion Shares unless they are registered under the Securities Act or unless in the opinion of counsel satisfactory to the Company an exemption from such registration is available. The Lender understands that the Conversion Shares have not been registered under the Securities Act by reason of a claimed exemption under the provisions of the Securities Act which depends, in part, upon the Lender’s investment intentionERISA.
5.9. The Lender understands that neither the SEC nor the securities administrator of any state or governmental entity outside the United States has made any finding or determination relating to the fairness of this investment and that neither the SEC nor any such securities administrator has recommended or endorsed, or will recommend or endorse, the offering and/or issuance of the Conversion Shares, nor have any of them reviewed or passed upon the accuracy or adequacy of this Agreement;
5.10. If the Lender is an entity, the execution, delivery and performance by the Lender of the Agreement has been duly authorized by its Board of Directors or other governing body and validly executed on its behalf;
5.11. The Lender acknowledges that no general solicitation or general advertising (including communications published in any newspaper, magazine, e-mail or by electronic means on the Internet or other broadcastg) has been received by him and that no public solicitation or advertisement with respect to the offering of the Conversion Shares has been made to him;
5.12. The each Person that is a Lender has sufficient resources to bear the economic risk of an investment in the Company and in the Conversion Shares for an indefinite period of time, and that this investment is being made for the account of the Lender alone;
5.13. By executing and delivering this Agreement, the Lender covenants to the Company that, except with the prior written permission of the Company, it shall at all times keep confidential and not divulge, furnish or make accessible to anyone any information contained in this Agreement, including the exhibits and attachments thereto;
5.14. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF ANY STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED, DISAPPROVED OR RECOMMENDED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL, THE COMPANY MAY AFFIX ON ANY SHARE CERTIFICATE ISSUED HEREUNDER APPROPRIATE LEGEND EVIDENCING THE ABOVE STATEMENTS;
5.15. The Lender is not a “U.S. Person” as that term is defined in Rule 902 of Regulation S under the Securities Act; and received all communications relating to the issuance of the Conversion Shares, and executed all documents relating thereto, outside the United States;
5.16. Without derogating from the foregoing, each Lender confirms that he/it is either a director of the Company or is considered as an investor for purpose of Section 15A(b)(1) to the Israeli Securities Law 5728–1968 (the "Israeli Securities Law") and he/it understands and confirms the implications thereof; and
5.17. The foregoing representations and warranties are true and accurate as of the date hereofClosing Date, shall such Lender is either not subject to or entitled to a complete exemption from United States withholding tax with respect to payments to be true and accurate as of the date of delivery of made under this Investment Agreement and accompanying documents to the Company and shall survive such delivery. If, in under any respect, those representations and warranties shall not be true and accurate prior to the conversion and issuance of any shares as provided for in this Agreement, the undersigned shall immediately give written notice to the Company specifying which representations and warranties are not true and accurate and the reason thereforNote.
Appears in 1 contract
Representations and Warranties of the Lenders. Each Lender (In connection with the transactions provided for herein, each of the Lenders, severally and not jointly, hereby represents, warrants and covenants (which representations, warranties and covenants will survive the Closing) hereby represents and warrants to the Company as followsthat:
5.1. The 3.1 such Lender has all requisite power understands and authority agrees that the Securities have not been registered under the Act and the Securities are being offered and sold by the Company to execute and deliver this Agreement and other agreements contemplated hereby or which are ancillary hereto and such Lender in reliance upon an exemption from registration provided by Rule 506 of Regulation D under the Act;
3.2 such Lender is authorized to consummate the transactions contemplated hereby and thereby. This Agreement constitutes a legal, valid and binding obligation purchase of the Lender, enforceable against Securities and the Lender in accordance with its terms.
5.2. The Lender is an “accredited investor” as such term is defined in Rule 501 securities that may be acquired on conversion of Regulation D promulgated under the Securities Act of 1933, as amended (the Securities and such other securities that may be acquired on conversion, collectively, the “Securities ActTransaction Securities”) and that the information contained on the signature page hereto is complete, accurate and true in all respects);
5.3. The Lender has had the opportunity to conduct an independent examination of the Company’s business, financial or legal affairs and condition and recognizes that the Company has a limited operating history and no approved pharmaceuticals, and that an investment in the Company involves a high degree of risk, including, without limitation, that the Company may never conduct an IPO or otherwise effectuate a liquidity event;
5.4. The Lender has been advised that there will be no market for the Conversion Shares and that a market may never develop. The Lender’s overall commitment to investments which are not readily marketable is not disproportionate to his net worth; his investment in the Company will not cause 3.3 such overall commitment to become excessive; and he can afford to bear the loss of his entire investment in the Company;
5.5. The Lender has adequate means of providing for his current needs and personal contingencies and has no need for liquidity in his investment in the Company;
5.6. The Lender has such knowledge knowledge, sophistication and experience in financial and business matters that he is as to be capable of evaluating the merits and risks of an the investment in the CompanyTransaction Securities, and is able to bear the economic risk of loss of the investment;
5.7. The 3.4 such Lender confirms that is an “accredited investor” within the Company has made available to Lender the opportunity to ask questions of, and receive answers from, the Company concerning the Company and/or the Conversion Shares. In considering its investment in the Company, the Lender has not relied upon any representations made by, or other information (whether oral or writtenmeaning of Rule 501(a) furnished by or on behalf of, the Company, or any director, officer, stockholder, partner, employee, agent, member, or counsel, or any representative or affiliate of any of the foregoing, other than as expressly set forth in this Agreement;
5.8. The Lender hereby acknowledges that the Lender has been advised that the Conversion Shares have not been, and will not be, registered with, or reviewed by, the United States Securities and Exchange Commission (the “SEC”) because the issuance of the Conversion Shares is intended to be a non-public offering pursuant to Section 4(2) and Regulation D under the Act (“Accredited Investor”) and is purchasing the Transaction Securities Act. The Lender represents thatfor his, in the event of conversion, the Conversion Shares are being purchased for the Lender’s her or its own account, account for investment purposes only and not with a view for to any resale, distribution or resale to others. The Lender agrees that the Lender will not sell or otherwise transfer the Conversion Shares unless they are registered under the Securities Act or unless in the opinion of counsel satisfactory to the Company an exemption from such registration is available. The Lender understands that the Conversion Shares have not been registered under the Securities Act by reason of a claimed exemption under the provisions other disposition of the Transaction Securities Act which depends, or any part thereof in part, upon the Lender’s investment intention.
5.9. The Lender understands any transaction that neither the SEC nor would be in violation of the securities administrator laws of any state or governmental entity outside the United States has made or any finding or determination relating to the fairness of this investment and that neither the SEC nor State thereof;
3.5 such Lender is not purchasing any such securities administrator has recommended or endorsed, or will recommend or endorse, the offering and/or issuance of the Conversion Shares, nor have Transaction Securities as a result of any form of them reviewed or passed upon the accuracy or adequacy of this Agreement;
5.10. If the Lender is an entity, the execution, delivery and performance by the Lender of the Agreement has been duly authorized by its Board of Directors or other governing body and validly executed on its behalf;
5.11. The Lender acknowledges that no general solicitation or general advertising (advertising, as those terms are used in Regulation D under the Act, including advertisements, articles, notices or other communications published in any newspaper, magazinemagazine or similar media or broadcast over radio, e-mail or television, or any seminar or meeting whose attendees have been invited by electronic means on the Internet or other broadcast) has been received by him and that no public general solicitation or advertisement with respect general advertising;
3.6 if such Lender decides to offer, sell or otherwise transfer any of the Transaction Securities, such Lender will not offer, sell or otherwise transfer any of such securities directly or indirectly, unless:
(a) the sale is to the offering of the Conversion Shares has been made to himCompany;
5.12. The (b) the sale is made pursuant to an effective registration statement;
(c) the sale is made in compliance with the exemption from the registration requirements under the Act provided by Rule 144, Rule 145 or Rule 144A thereunder, if available, and in accordance with any applicable state securities or “Blue Sky” laws; or
(d) the securities are sold in a transaction that does not require registration under the Act or any applicable U.S. state laws and regulations governing the offer and sale of securities, and such Lender has sufficient resources prior to bear the economic risk of an investment in the Company and in the Conversion Shares for an indefinite period of time, and that this investment is being made for the account of the Lender alone;
5.13. By executing and delivering this Agreement, the Lender covenants such sale furnished to the Company that, except with the prior written permission an opinion of counsel to that effect which is satisfactory to the Company, it or the Company has otherwise satisfied itself that such registration is not required, provided that none of the restrictions hereunder shall at all times keep confidential and not divulge, furnish restrict any pledge of the Transaction Securities to a bank or make accessible to anyone any information contained other financial institution that creates a mere security interest in this Agreement, including the exhibits and attachments theretosuch Transaction Securities in connection with a bona fide loan transaction;
5.143.7 such Lender understands and acknowledges that the Transaction Securities are “restricted securities” and upon the original issuance thereof, and until such time as the same is no longer required under the applicable requirements of the Act or applicable U.S. state laws and regulations, the certificates representing the Transaction Securities will bear a legend in substantially the following form: NEITHER THE SECURITIES REPRESENTED NOR THE SECURITIES ISSUABLE UPON EXERCISE OR CONVERSION THEREOF HEREBY HAVE BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, (C) IN ACCORDANCE WITH RULE 144, RULE 145 OR RULE 144A UNDER THE SECURITIES ACT, IF APPLICABLE, AND IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS OR (D) IF THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, OR OTHERWISE SATISFIED ITSELF, THAT THE TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES LAWS OF ANY STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED, DISAPPROVED OR RECOMMENDED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY APPLICABLE U.S. STATE LAWS AND REGULATIONS GOVERNING THE OFFER AND SALE OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL, THE COMPANY MAY AFFIX ON ANY SHARE CERTIFICATE ISSUED HEREUNDER APPROPRIATE LEGEND EVIDENCING THE ABOVE STATEMENTS;SECURITIES.
5.15. The 3.8 such Lender is not a “U.S. Person” has been afforded the opportunity (i) to ask such questions as that term is defined in Rule 902 of Regulation S under the Securities Act; and received all communications relating to the issuance of the Conversion Sharessuch Lender has deemed necessary of, and executed all documents relating theretoto receive answers from, outside the United States;
5.16. Without derogating from the foregoing, each Lender confirms that he/it is either a director representatives of the Company or is considered as an investor for purpose concerning the terms and conditions of Section 15A(b)(1the offering of the Transaction Securities and (ii) to obtain such additional information which the Israeli Company possesses or can acquire without unreasonable effort or expense necessary to verify the accuracy and completeness of the information requested and that such Lender has considered necessary in connection with its decision to invest in the Transaction Securities;
3.9 such Lender understands that the Company shall instruct its transfer agent to refuse to register any transfer of Transaction Securities Law 5728–1968 (without first being notified by the "Israeli Company that it is satisfied that such transfer is exempt from or not subject to the registration requirements of the Act;
3.10 such Lender consents to the Company making a notation on its records or giving instruction to the registrar and transfer agent of the Company in order to implement the restrictions on transfer set forth and described herein;
3.11 the address of such Lender at which such Lender received and accepted the offer to purchase the Securities Law") is the address listed on Schedule 1 to this Agreement;
3.12 such Lender agrees that by accepting Securities, he, she or it shall be representing and he/it understands and confirms warranting that the implications thereof; and
5.17. The foregoing representations and warranties in this Section 3 are true as at the Closing with the same force and accurate effect as if they had been made by it at the Closing and will be true and correct as of the date hereof, shall be true conversion of the Securities with the same force and accurate effect as if they had been made by it as of the date of delivery such conversion, and that they shall survive the purchase of this Agreement Securities and accompanying documents the Transaction Securities and shall continue in full force and effect notwithstanding any subsequent disposition by it of any of the Transaction Securities; and
3.13 such Lender understands that the Company is an early-stage company with a limited operating history and is subject to the Company high level of risk, and shall survive that an investment in the Transaction Securities is speculative, involves a high degree of risk and may result in a loss of all of such delivery. If, Lender’s investment in any respect, those representations and warranties shall not be true and accurate prior to the conversion and issuance of any shares as provided for in this Agreement, the undersigned shall immediately give written notice to the Company specifying which representations and warranties are not true and accurate and the reason thereforTransaction Securities.
Appears in 1 contract
Representations and Warranties of the Lenders. Each Lender (of the Lenders, severally and not jointly) hereby , represents and warrants only as itself to the Company Borrower or as follows:
5.1. The Lender has all requisite power and authority to execute and deliver this Agreement and other agreements contemplated hereby or which are ancillary hereto and to consummate the transactions contemplated hereby and thereby. This Agreement constitutes a legal, valid and binding obligation of the Lender, enforceable against the Lender in accordance with its terms.
5.2. The Lender (a) It is (i) an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”) and that the information contained on the signature page hereto is complete, accurate and true in all respects;
5.3. The Lender has had the opportunity to conduct an independent examination of the Company’s business, financial or legal affairs and condition and recognizes that the Company has a limited operating history and no approved pharmaceuticals, and that an investment in the Company involves a high degree of risk, including, without limitation, that the Company may never conduct an IPO or otherwise effectuate a liquidity event;
5.4. The Lender has been advised that there will be no market for the Conversion Shares and that a market may never develop. The Lender’s overall commitment to investments which are not readily marketable is not disproportionate to his net worth; his investment in the Company will not cause such overall commitment to become excessive; and he can afford to bear the loss of his entire investment in the Company;
5.5. The Lender has adequate means of providing for his current needs and personal contingencies and has no need for liquidity in his investment in the Company;
5.6. The Lender has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of an investment in the Company;
5.7. The Lender confirms that the Company has made available to Lender the opportunity to ask questions of, and receive answers from, the Company concerning the Company and/or the Conversion Shares. In considering its investment in the Company, the Lender has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, the Company, or any director, officer, stockholder, partner, employee, agent, member, or counsel, or any representative or affiliate of any of the foregoing, other than as expressly set forth in this Agreement;
5.8. The Lender hereby acknowledges that the Lender has been advised that the Conversion Shares have not been, and will not be, registered with, or reviewed by, the United States Securities and Exchange Commission (the “SEC”) because the issuance of the Conversion Shares is intended to be a non-public offering pursuant to Section 4(2) and Regulation D under the Securities Act. The Lender represents that, in the event of conversion, the Conversion Shares are being purchased for the Lender’s own account, for investment purposes only and not with a view for distribution or resale to others. The Lender agrees that the Lender will not sell or otherwise transfer the Conversion Shares unless they are registered under the Securities Act or unless in the opinion of counsel satisfactory to the Company an exemption from such registration is available. The Lender understands that the Conversion Shares have not been registered under the Securities Act by reason of a claimed exemption under the provisions of the Securities Act which depends, in part, upon the Lender’s investment intention.
5.9. The Lender understands that neither the SEC nor the securities administrator of any state or governmental entity outside the United States has made any finding or determination relating to the fairness of this investment and that neither the SEC nor any such securities administrator has recommended or endorsed, or will recommend or endorse, the offering and/or issuance of the Conversion Shares, nor have any of them reviewed or passed upon the accuracy or adequacy of this Agreement;
5.10. If the Lender is an entity, the execution, delivery and performance by the Lender of the Agreement has been duly authorized by its Board of Directors or other governing body and validly executed on its behalf;
5.11. The Lender acknowledges that no general solicitation or general advertising (including communications published in any newspaper, magazine, e-mail or by electronic means on the Internet or other broadcast) has been received by him and that no public solicitation or advertisement with respect to the offering of the Conversion Shares has been made to him;
5.12. The Lender has sufficient resources to bear the economic risk of an investment in the Company and in the Conversion Shares for an indefinite period of time, and that this investment is being made for the account of the Lender alone;
5.13. By executing and delivering this Agreement, the Lender covenants to the Company that, except with the prior written permission of the Company, it shall at all times keep confidential and not divulge, furnish or make accessible to anyone any information contained in this Agreement, including the exhibits and attachments thereto;
5.14. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF ANY STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED, DISAPPROVED OR RECOMMENDED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL, THE COMPANY MAY AFFIX ON ANY SHARE CERTIFICATE ISSUED HEREUNDER APPROPRIATE LEGEND EVIDENCING THE ABOVE STATEMENTS;
5.15. The Lender is not a “U.S. Person” as that term is defined in Rule 902 501 of Regulation S the Securities Act, and that, in making the purchases contemplated herein, it is specifically understood and agreed that the Lenders is acquiring the Notes for the purpose of investment and act with a view towards the sale or distribution thereof within the meaning of the Securities Act; provided, however, that the disposition of the Lenders’ property shall at all times be and remain within its control.
(b) It understands that the Notes will not be registered under the Securities Act; , by reason of their issuance by the Borrower in a transaction exempt from the registration requirements of the Securities Act, and received all communications relating that it must hold the Notes indefinitely unless a subsequent disposition thereof is registered under the Securities Act and applicable state securities laws or is exempt from registration.
(c) It has not employed any broker or finder in connection with the transactions contemplated by this Agreement.
(d) It has been furnished with or has had access to the issuance information it has requested from the Borrower and has had an opportunity to discuss with the management of the Conversion SharesBorrower the business and financial affairs of the Borrower, and executed all documents relating has generally such knowledge and experience in business and financial matters and with respect to investments in securities or privately held companies so as to enable it to understand and evaluate the risks of such investment and form an investment decision with respect thereto; provided , outside however, that the United States;
5.16. Without derogating foregoing shall in no way affect, diminish or derogate from the foregoing, each Lender confirms that he/it is either a director of the Company or is considered as an investor for purpose of Section 15A(b)(1) to the Israeli Securities Law 5728–1968 (the "Israeli Securities Law") and he/it understands and confirms the implications thereof; and
5.17. The foregoing representations and warranties are true and accurate as made by the Borrower hereunder or the right of the date hereof, shall be true Lenders to rely thereon and accurate as to seek indemnification hereunder.
(e) Either (i) no part of the date of delivery of this Agreement and accompanying documents funds to be used by such Lender to acquire or hold the Company and shall survive such delivery. If, in any respect, those representations and warranties shall not be true and accurate prior to the conversion and issuance Notes constitutes assets of any shares as provided for in this Agreement, “employee benefit plan” within the undersigned shall immediately give written notice to meaning of Section 3(3) of ERISA or any “plan” within the Company specifying which representations meaning of Section 4975 of the Code or (ii) the acquisition and warranties are not true and accurate holding of the Notes by such Lender is exempt from the restrictions on prohibited transactions of ERISA and the reason thereforCode pursuant to one or more statutory, regulatory or administrative exemptions.
Appears in 1 contract
Samples: Credit Agreement (DelStaff, LLC)
Representations and Warranties of the Lenders. Each Lender (of the Lenders, severally and not jointly) hereby , represents and warrants only as to itself to the Company as follows:
5.1. The Lender has all requisite power and authority to execute and deliver this Agreement and other agreements contemplated hereby or which are ancillary hereto and to consummate the transactions contemplated hereby and thereby. This Agreement constitutes a legal, valid and binding obligation of the Lender, enforceable against the Lender in accordance with its terms.
5.2. The Lender (a) It is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”) and that the information contained on the signature page hereto is complete, accurate and true in all respects;
5.3. The Lender has had the opportunity to conduct an independent examination of the Company’s business, financial or legal affairs and condition and recognizes that the Company has a limited operating history and no approved pharmaceuticals, and that an investment in the Company involves a high degree of risk, including, without limitation, that the Company may never conduct an IPO or otherwise effectuate a liquidity event;
5.4. The Lender has been advised that there will be no market for the Conversion Shares and that a market may never develop. The Lender’s overall commitment to investments which are not readily marketable is not disproportionate to his net worth; his investment in the Company will not cause such overall commitment to become excessive; and he can afford to bear the loss of his entire investment in the Company;
5.5. The Lender has adequate means of providing for his current needs and personal contingencies and has no need for liquidity in his investment in the Company;
5.6. The Lender has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of an investment in the Company;
5.7. The Lender confirms that the Company has made available to Lender the opportunity to ask questions of, and receive answers from, the Company concerning the Company and/or the Conversion Shares. In considering its investment in the Company, the Lender has not relied upon any representations made by, or other information (whether oral or written) furnished by or on behalf of, the Company, or any director, officer, stockholder, partner, employee, agent, member, or counsel, or any representative or affiliate of any of the foregoing, other than as expressly set forth in this Agreement;
5.8. The Lender hereby acknowledges that the Lender has been advised that the Conversion Shares have not been, and will not be, registered with, or reviewed by, the United States Securities and Exchange Commission (the “SEC”) because the issuance of the Conversion Shares is intended to be a non-public offering pursuant to Section 4(2) and Regulation D under the Securities Act. The Lender represents that, in the event of conversion, the Conversion Shares are being purchased for the Lender’s own account, for investment purposes only and not with a view for distribution or resale to others. The Lender agrees that the Lender will not sell or otherwise transfer the Conversion Shares unless they are registered under the Securities Act or unless in the opinion of counsel satisfactory to the Company an exemption from such registration is available. The Lender understands that the Conversion Shares have not been registered under the Securities Act by reason of a claimed exemption under the provisions of the Securities Act which depends, in part, upon the Lender’s investment intention.
5.9. The Lender understands that neither the SEC nor the securities administrator of any state or governmental entity outside the United States has made any finding or determination relating to the fairness of this investment and that neither the SEC nor any such securities administrator has recommended or endorsed, or will recommend or endorse, the offering and/or issuance of the Conversion Shares, nor have any of them reviewed or passed upon the accuracy or adequacy of this Agreement;
5.10. If the Lender is an entity, the execution, delivery and performance by the Lender of the Agreement has been duly authorized by its Board of Directors or other governing body and validly executed on its behalf;
5.11. The Lender acknowledges that no general solicitation or general advertising (including communications published in any newspaper, magazine, e-mail or by electronic means on the Internet or other broadcast) has been received by him and that no public solicitation or advertisement with respect to the offering of the Conversion Shares has been made to him;
5.12. The Lender has sufficient resources to bear the economic risk of an investment in the Company and in the Conversion Shares for an indefinite period of time, and that this investment is being made for the account of the Lender alone;
5.13. By executing and delivering this Agreement, the Lender covenants to the Company that, except with the prior written permission of the Company, it shall at all times keep confidential and not divulge, furnish or make accessible to anyone any information contained in this Agreement, including the exhibits and attachments thereto;
5.14. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF ANY STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED, DISAPPROVED OR RECOMMENDED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL, THE COMPANY MAY AFFIX ON ANY SHARE CERTIFICATE ISSUED HEREUNDER APPROPRIATE LEGEND EVIDENCING THE ABOVE STATEMENTS;
5.15. The Lender is not a “U.S. Person” as that term is defined in Rule 902 501 of Regulation S the Securities Act, and that, in making the purchases contemplated herein, it is specifically understood and agreed that the Lenders is acquiring the Notes for the purpose of investment and not with a view towards the sale or distribution thereof within the meaning of the Securities Act; provided, however, that the disposition of the Lenders’ property shall at all times be and remain within its control.
(b) It understands that the Notes will not be registered under the Securities Act; , by reason of their issuance by the Company in a transaction exempt from the registration requirements of the Securities Act, and received all communications relating that it must hold the Notes indefinitely unless a subsequent disposition thereof is registered under the Securities Act and applicable state securities laws or is exempt from registration.
(c) It has not employed any broker or finder in connection with the transactions contemplated by this Agreement.
(d) It has been furnished with or has had access to the issuance of the Conversion Shares, and executed all documents relating thereto, outside the United States;
5.16. Without derogating information it has requested from the foregoing, each Lender confirms that he/it is either a director Company and has had an opportunity to discuss with the management of the Company the business and financial affairs of the Loan Parties, and has generally such knowledge and experience in business and financial matters and with respect to investments in securities or is considered privately held companies so as to enable it to understand and evaluate the risks of such investment and form an investor for purpose of Section 15A(b)(1) to investment decision with respect thereto; provided, however, that the Israeli Securities Law 5728–1968 (foregoing shall in no way affect, diminish or derogate from the "Israeli Securities Law") and he/it understands and confirms the implications thereof; and
5.17. The foregoing representations and warranties are true and accurate as made by the Company hereunder or the right of the date hereof, shall be true Lenders to rely thereon and accurate as to seek indemnification hereunder.
(e) Either (i) no part of the date of delivery of this Agreement and accompanying documents funds to be used by such Lender to acquire or hold the Company and shall survive such delivery. If, in any respect, those representations and warranties shall not be true and accurate prior to the conversion and issuance Notes constitutes assets of any shares as provided for in this Agreement, “employee benefit plan” within the undersigned shall immediately give written notice to meaning of Section 3(3) of ERISA or any “plan” within the Company specifying which representations meaning of Section 4975 of the Code or (ii) the acquisition and warranties are not true and accurate holding of the Notes by such Lender is exempt from the restrictions on prohibited transactions of ERISA and the reason thereforCode pursuant to one or more statutory, regulatory or administrative exemptions.
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