REPRESENTATIONS BY SUBSCRIBER. The Subscriber understands and agrees that the Company is relying and may rely upon the following representations and warranties made by the Subscriber in entering into this Agreement: 2.1 The Subscriber recognizes that the acquisition of the Shares involves a high degree of risk and is suitable only for a subscriber of adequate financial means that has no need for liquidity in this investment in that (i) it may not be able to liquidate its investment in the event of emergency; (ii) transferability is extremely limited; and (iii) it could sustain a complete loss of its investment. 2.2 The Subscriber represents and warrants that the Shares are being acquired for its own account, for investment purposes and not with a view to any distribution within the meaning of the Securities Act of 1933, as amended (the "Securities Act"). The Subscriber will not sell, assign, mortgage, pledge, hypothecate, transfer or otherwise dispose of any of the Shares unless (a) a registration statement under the Securities Act with respect thereto is in effect and the prospectus included therein meets the requirements of Section 10 of the Securities Act, or (b) the Company has received a written opinion of its counsel that, after an investigation of the relevant facts, such counsel is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer or disposition does not require registration under the Securities Act. The Subscriber consents that the Company may, if it desires, permit the transfer of the Shares by the Subscriber out of its name only when its request for transfer is accompanied by an opinion of counsel satisfactory to the Company that the proposed transfer does not result in a violation of the Securities Act. The Subscriber agrees to be bound by any requirements of the Securities Act. The Subscriber agrees to hold the Company and its controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any sale or distribution by the Subscriber in violation of any securities laws or any misrepresentation herein. 2.3 The Subscriber represents and warrants further that (a) it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the acquisition of the Shares; (b) it is able to bear the economic risks of an investment in the Shares, including, without limitation, the risk of the loss of part or all of its investment and the inability to sell or transfer the Shares for an indefinite period of time; (c) it has adequate financial means of providing for current needs and contingencies and has no need for liquidity in its investment in the Shares; and (d) it does not have an overall commitment to investments which are not readily marketable that is excessive in proportion to its net worth and an investment in the Shares will not cause such overall commitment to become excessive. 2.4 The Subscriber has reviewed the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 2000 (the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made by the Company with the Securities and Exchange Commission (the "SEC") since the filing of the 2000 Form 10-KSB, and has been afforded the opportunity to obtain such information regarding the Company as it has reasonably requested to evaluate the merits and risks of its investment in the Shares. No oral or written representations have been made or oral information furnished to the Subscriber or its advisers in connection with the investment in the Shares. 2.5 The Subscriber represents and warrants that the Shares are being acquired, and will be held, pursuant to Regulation S ("Regulation S") promulgated under the Securities Act. The certificate representing the Shares is not to be delivered within the United States. The Subscriber is neither a "U.S. person" (as such term is defined in Regulation S) nor is acquiring the Shares for the account or benefit of a "U.S. person". The Subscriber acknowledges that Rule 902(o) of Regulation S defines a "U.S. person" generally as (a) a natural person resident in the United States; (b) a partnership or corporation organized or incorporated under the laws of the United States; (c) an estate of which any executor or administrator is a U.S. person; (d) a trust of which any trustee is a U.S. person; (e) an agency or branch of a foreign entity located in the United States; (f) a non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individual) resident in the United States; and (h) a partnership or corporation if (I) organized or incorporated under the laws of any foreign jurisdiction; and (II) formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) of Regulation D under the Securities Act) who are not natural persons, estates or trusts. The Subscriber agrees that the Shares may not be offered or sold in the United States or to "U.S. persons" unless registered under the Securities Act or an exemption therefrom is available and that hedging transactions involving the Company's securities may not be conducted unless in compliance with the Securities Act. 2.6 The Subscriber acknowledges that counsel to the Company will be relying, and may rely, upon the foregoing in connection with any opinion of counsel given with regard to the issuance of the Shares to the Subscriber and any subsequent transfer of the Shares by the Subscriber and agrees to advise the Company and its counsel in writing in the event of any change in any of the foregoing. 2.7 The address set forth below is the Subscriber's true and correct mailing address.
Appears in 2 contracts
Samples: Subscription Agreement (Navtech Inc), Subscription Agreement (Navtech Inc)
REPRESENTATIONS BY SUBSCRIBER. The Subscriber understands and agrees that the Company is relying and may rely upon the following representations and warranties made by the Subscriber in entering into this Agreement:
2.1 The Subscriber recognizes that the acquisition purchase of the Shares involves a high degree Common Stock entails elements of risk and is suitable only for a subscriber of adequate financial means that has no need for liquidity in this investment in that (i) it may not be able to readily liquidate its investment in the event of emergencyinvestment; (ii) transferability is extremely limitedrestricted; and (iii) in the event of a disposition, it could sustain a complete the loss of its entire investment.
2.2 The Subscriber represents acknowledges that it has prior investment experience such that it is able to evaluate the merits and warrants risks of an investment in the Company, or that it has employed the services of an investment advisor to read the Disclosure Documents (as hereinafter defined) and to evaluate the merits and risks of such an investment on its behalf; that it recognizes the speculative nature of this investment; and that it is able to bear the economic risk it hereby assumes. The Company’s (i) Annual Report on Form 10-K for the year ended December 31, 2007, as filed with the U.S. Securities and Exchange Commission (“SEC”), and other documents as filed with the SEC, are collectively referred to as the “Disclosure Documents.” The Subscriber acknowledges that it or its representative(s) have read the Disclosure Documents. The Subscriber also acknowledges that it and its representative(s) have been afforded the opportunity to make, and has made, all inquiries as it and its representatives deemed appropriate with respect to the Company’s affairs and prospects.
2.3 The Subscriber hereby acknowledges that (i) the Common Stock has not been approved by the American Stock Exchange (“AMEX”) or reviewed by the SEC by reason of the Company’s intention that the Shares are being acquired for its own account, for investment purposes Offering be a transaction exempt from the registration and not with a view to any distribution within the meaning prospectus delivery requirements of the U.S. Securities Act of 1933, as amended (the "Securities “Act")”) pursuant to Section 4(2) thereof; (ii) the issuance of the Common Stock has not been qualified under any state securities laws on the grounds that the Common Stock and the sale of the Shares contemplated hereby are exempt there from; and (iii) the foregoing exemptions are predicated on the Subscriber’s representations set forth herein. The Subscriber represents that the Common Stock are being purchased for its 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 Act or applicable state securities laws. The Subscriber understands that the Common Stock, upon their transfer, will not sell, assign, mortgage, pledge, hypothecate, transfer or otherwise dispose of any of the Shares unless (a) a registration statement be registered under the Securities Act with respect thereto is in effect and may be required to be held indefinitely unless they are subsequently registered under the prospectus included therein meets the requirements of Section 10 of the Securities Act, or (b) the Company has received a written opinion of its counsel that, after an investigation of the relevant facts, exemption from such counsel registration is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer or disposition does not require registration under the Securities Act. The Subscriber consents that the Company may, if it desires, permit the transfer of the Shares by the Subscriber out of its name only when its request for transfer is accompanied by an opinion of counsel satisfactory to the Company that the proposed transfer does not result in a violation of the Securities Act. The Subscriber agrees to be bound by any requirements of the Securities Act. The Subscriber agrees to hold the Company and its controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any sale or distribution by the Subscriber in violation of any securities laws or any misrepresentation herein.
2.3 The Subscriber represents and warrants further that (a) it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the acquisition of the Shares; (b) it is able to bear the economic risks of an investment in the Shares, including, without limitation, the risk of the loss of part or all of its investment and the inability to sell or transfer the Shares for an indefinite period of time; (c) it has adequate financial means of providing for current needs and contingencies and has no need for liquidity in its investment in the Shares; and (d) it does not have an overall commitment to investments which are not readily marketable that is excessive in proportion to its net worth and an investment in the Shares will not cause such overall commitment to become excessiveavailable.
2.4 The Subscriber has reviewed represents that it is an “accredited investor” as that term is defined in Rule 501 of Regulation D promulgated under the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 2000 (the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made by the Company with the Securities and Exchange Commission (the "SEC") since the filing of the 2000 Form 10-KSB, and has been afforded the opportunity to obtain such information regarding the Company as it has reasonably requested to evaluate the merits and risks of its investment in the Shares. No oral or written representations have been made or oral information furnished to the Subscriber or its advisers in connection with the investment in the SharesAct.
2.5 The Subscriber represents and warrants acknowledges that the Shares are being acquired, and will be held, pursuant to Regulation S ("Regulation S") promulgated under the Securities Act. The certificate representing the Shares is not to be delivered within Common Stock shall bear a legend in substantially the United Statesfollowing form: “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED BY THE HOLDER FOR ITS OWN ACCOUNT, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO THE DISTRIBUTION OF SUCH SECURITIES. The Subscriber is neither a "U.S. person" THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (as such term is defined in Regulation S) nor is acquiring the Shares for the account or benefit of a "U.S. person". The Subscriber acknowledges that Rule 902(o) of Regulation S defines a "U.S. person" generally as (a) a natural person resident in the United States; (b) a partnership or corporation organized or incorporated under the laws of the United States; (c) an estate of which any executor or administrator is a U.S. person; (d) a trust of which any trustee is a U.S. person; (e) an agency or branch of a foreign entity located in the United States; (f) a non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organizedTHE “ACT”), incorporated or (if an individual) resident in the United States; and (h) a partnership or corporation if OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT (I) organized or incorporated under the laws of any foreign jurisdiction; and PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND COMPLIANCE WITH SUCH STATE SECURITIES LAWS, (II) formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities ActIN COMPLIANCE WITH RULE 144 UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, unless it is organized or incorporatedOR (III) UPON THE DELIVERY TO IA GLOBAL, and owned, by accredited investors INC. (as defined in Rule 501(aTHE “COMPANY”) of Regulation D under the Securities Act) who are not natural persons, estates or trusts. The Subscriber agrees that the Shares may not be offered or sold in the United States or to "U.S. persons" unless registered under the Securities Act or an exemption therefrom is available and that hedging transactions involving the Company's securities may not be conducted unless in compliance with the Securities ActOF AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION AND/ OR COMPLIANCE IS NOT REQUIRED.”
2.6 The Subscriber acknowledges represents that counsel it has the full right, power and authority to enter into and perform the Subscriber’s obligations hereunder, and this Agreement constitutes a valid and binding obligation of the Subscriber enforceable in accordance with its terms, except that (i) any enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or similar laws from time to time in effect and affecting the rights of creditors generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company will be relying, and may rely, upon the foregoing in connection with any opinion of counsel given with regard to the issuance discretion of the Shares to the Subscriber and court before which any subsequent transfer of the Shares by the Subscriber and agrees to advise the Company and its counsel in writing in the event of any change in any of the foregoingproceedings therefore may be brought.
2.7 The address set forth below Subscriber and his affiliates agree not to engage in any trading activity in the Common Stock from the date of this Agreement until the Effective Date.
2.8 The Subscriber understands that if the Additional Warrant is issued, the Subscriber's true Company agrees to file an application with AMEX for approval the shares of Common Stock issuable upon exercise of the Additional Warrant (“Warrant Shares”) and correct mailing addressthe Company agrees to register with the SEC the Warrant Shares in accordance with Section V below.
Appears in 2 contracts
Samples: Subscription Agreement (Ia Global Inc), Subscription Agreement (Ia Global Inc)
REPRESENTATIONS BY SUBSCRIBER. The Subscriber understands and agrees that In addition to the Company is relying and may rely upon the following representations and warranties made by the Subscriber set forth in entering into Article V and elsewhere in this Agreement, the Subscriber, represents, warrants and acknowledges to the Company that:
2.1 The Subscriber recognizes that that: (i) the acquisition purchase of the Shares Units involves a high degree of risk risk, is speculative and is suitable only for a subscriber investors who can afford the loss of adequate financial means that has no need for liquidity their entire investment should consider investing in this investment in that the Company and/or the Units; (iii) it the Subscriber may not be able to liquidate its investment investment; (iii) transferability of the Shares is extremely limited; and, (iv) in the event of emergency; (ii) transferability is extremely limited; and (iii) it a disposition of the Shares, the Subscriber could sustain a complete the loss of its entire investment.
2.2 The Subscriber represents and warrants that the Shares are being acquired for its own account, for investment purposes and not with a view to any distribution within the meaning of the Securities Act of 1933Subscriber is an "accredited investor", as amended (the "Securities Act"). The Subscriber will not sell, assign, mortgage, pledge, hypothecate, transfer or otherwise dispose of any of the Shares unless (a) a registration statement under the Securities Act with respect thereto is in effect and the prospectus included therein meets the requirements of Section 10 of the Securities Act, or (b) the Company has received a written opinion of its counsel that, after an investigation of the relevant facts, such counsel is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer or disposition does not require registration under the Securities Act. The Subscriber consents that the Company may, if it desires, permit the transfer of the Shares indicated by the Subscriber out of its name only when its request for transfer is accompanied by an opinion of counsel satisfactory Subscriber's responses to the Company that the proposed transfer does not result questions contained in a violation of the Securities Act. The Subscriber agrees to be bound by any requirements of the Securities Act. The Subscriber agrees to hold the Company and its controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any sale or distribution by the Subscriber in violation of any securities laws or any misrepresentation herein.Article V.
2.3 The Subscriber represents and warrants further hereby acknowledges that (a) it has such knowledge been furnished with, (i) the Confidential Memorandum Supplement containing additional information relating to the Company, including risk factors (the "Confidential Memorandum"). This Agreement and experience in financial the Confidential Memorandum are collectively referred to herein as the "Offering Documents." The Subscriber has carefully reviewed the Offering Documents and business matters that it is capable of evaluating familiar with and understands the merits and risks terms of the acquisition of Offering, including the Shares; (b) it rights to which the Subscriber is able to bear entitled under this Agreement. The Subscriber specifically acknowledges and is familiar with the economic risks of an investment Risk Factors set forth in the Shares, including, without limitation, the risk of the loss of part or all of its investment and the inability to sell or transfer the Shares for an indefinite period of time; (c) it has adequate financial means of providing for current needs and contingencies and has no need for liquidity in its investment in the Shares; and (d) it does not have an overall commitment to investments which are not readily marketable that is excessive in proportion to its net worth and an investment in the Shares will not cause such overall commitment to become excessiveConfidential Memorandum.
2.4 The Subscriber further represents and warrants that the Subscriber has reviewed the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 2000 (the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made been furnished by the Company during the course of this transaction with all information regarding the Securities and Exchange Commission (Company which the "SEC") since the filing of the 2000 Form 10-KSBSubscriber, as well as its investment advisor, attorney and/or accountant, has requested or desired to know, and has been afforded the opportunity Opportunity to obtain such information regarding ask questions of and receive answers from duly authorized officers or other representatives of the Company as it concerning the terms and conditions of the Offering, and has reasonably requested to evaluate the merits and risks of its investment in the Shares. No oral or written representations have been made or oral received any additional information furnished to which the Subscriber or its advisers in connection with has requested concerning the investment in terms and conditions of the SharesOffering and the Company.
2.5 The Subscriber represents has relied solely upon the information provided by the Company in making the Subscriber's decision to invest in the Units and warrants that has not relied upon any other representation or other information (whether oral or written) from the Shares are being acquiredCompany, or any agent, employee or affiliate of the Company or any other third party other than as set forth in the Offering, and will be held, pursuant to Regulation S ("Regulation S") promulgated under the Securities Act. The certificate representing the Shares is not to be delivered within the United States. The Subscriber is neither a "U.S. person" (as such term is defined in Regulation S) nor is acquiring the Shares for the account or benefit results of a "U.S. person"Subscriber's own independent investigation. The Subscriber acknowledges and agrees that Rule 902(o) of Regulation S defines a "U.S. person" generally as (a) a natural person resident in it shall not be entitled to seek any remedies with respect to the United States; (b) a partnership or corporation organized or incorporated under the laws of the United States; (c) an estate of which Offering from any executor or administrator is a U.S. person; (d) a trust of which any trustee is a U.S. person; (e) an agency or branch of a foreign entity located in the United States; (f) a non-discretionary account or similar account (party other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individual) resident in the United States; and (h) a partnership or corporation if (I) organized or incorporated under the laws of any foreign jurisdiction; and (II) formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) of Regulation D under the Securities Act) who are not natural persons, estates or trusts. The Subscriber agrees that the Shares may not be offered or sold in the United States or to "U.S. persons" unless registered under the Securities Act or an exemption therefrom is available and that hedging transactions involving the Company's securities may not be conducted unless in compliance with the Securities Act.
2.6 The Subscriber acknowledges represents that counsel no Units were offered or sold to it by means of any form of general solicitation or general advertising, and in connection therewith the Subscriber did not: (A) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio whether closed circuit, or generally available; or (B) attend any seminar meeting or industry investor conference whose attendees were invited by any general solicitation or general advertising.
2.7 The Subscriber understands that the Units have not been registered under the Act by reason of a claimed exemption under the provisions of the Act which depends, in part, upon the Subscriber's investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing the Units for the Subscriber's own account for investment purposes only and not o with a view toward the resale or distribution to others and has no contract, undertaking, agreement or other arrangement, in existence or contemplated, to sell, pledge, assign or otherwise transfer the Units to any other person.
2.8 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Shares substantially as set forth below, that such Shares have not been registered under the Act or any state securities or "blue sky" laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. The Subscriber is aware that the Company will make a notation in o its appropriate records with respect to the restrictions on the transferability of the Shares. THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
2.9 The Subscriber agrees to supply the Company, within five business (5) days after the Subscriber receives the request therefore from the Company, with such additional information concerning the Subscriber as the Company deems necessary or advisable.
2.10 The Subscriber understands, acknowledges and agrees with the Company that the Offering is intended to be relyingexempt from registration under the Act by virtue of Section4(2) of the Act and the provisions of Regulation D thereunder, and may rely, which is in part dependent upon the foregoing in connection with any opinion of counsel given with regard to the issuance truth, completeness and accuracy of the Shares to the Subscriber and any subsequent transfer of the Shares statements made by the Subscriber and agrees to advise Subscriber will hold the Company harmless from all liability, damages, costs and its counsel in writing expenses resulting from any breach thereof.
2.11 The Subscriber acknowledges that the information contained in the event of any change Offering Documents or otherwise made available to the Subscriber is confidential and non-public and agrees that all such information shall be kept in any of confidence by the foregoing.
2.7 The address set forth below is Subscriber and neither be used by the Subscriber for the Subscriber's true personal benefit (other than in connection with this Subscription) nor disclosed to any third party for any reason, notwithstanding that the Subscriber's Subscription may not be accepted by the Company.
2.12 The Company is under no obligation to, and correct mailing addressthere can be no assurance that, the Company will receive or accept subscriptions for the aggregate number of Units that may be sold by the Company pursuant to the Offering.
Appears in 1 contract
REPRESENTATIONS BY SUBSCRIBER. The Subscriber understands and agrees that In addition to the Company is relying and may rely upon the following representations and warranties made by the Subscriber set forth in entering into Article VI hereof and elsewhere in this Agreement, the Subscriber, represents, warrants and acknowledges to the Company that:
2.1 The Subscriber recognizes that (i) the acquisition purchase of the Shares Securities involves a high degree of risk and is suitable speculative, and only for a subscriber investors who can afford the loss of adequate financial means that has no need for liquidity their entire investment should consider investing in this investment in that the Company and the Securities; (iii) it the Subscriber may not be able to liquidate its investment investment; (iii) the transferability of the Securities is extremely limited; and, (iv) in the event of emergency; (ii) transferability is extremely limited; and (iii) it a disposition of the Securities, the Subscriber could sustain a complete the loss of its entire investment.
2.2 The Subscriber represents and warrants that the Shares are being acquired for its own account, for investment purposes and not with a view to any distribution within the meaning of the Securities Act of 1933Subscriber is an “accredited investor”, as amended (the "Securities Act"). The Subscriber will not sell, assign, mortgage, pledge, hypothecate, transfer or otherwise dispose of any of the Shares unless (a) a registration statement under the Securities Act with respect thereto is in effect and the prospectus included therein meets the requirements of Section 10 of the Securities Act, or (b) the Company has received a written opinion of its counsel that, after an investigation of the relevant facts, such counsel is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer or disposition does not require registration under the Securities Act. The Subscriber consents that the Company may, if it desires, permit the transfer of the Shares indicated by the Subscriber out of its name only when its request for transfer is accompanied by an opinion of counsel satisfactory Subscriber’s responses to the Company that the proposed transfer does not result questions contained in a violation of the Securities Act. The Subscriber agrees to be bound by any requirements of the Securities Act. The Subscriber agrees to hold the Company and its controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any sale or distribution by the Subscriber in violation of any securities laws or any misrepresentation hereinArticle VI.
2.3 The Subscriber hereby acknowledges that it has been furnished with, or has had an opportunity to acquire and carefully review, the “Offering Documents” consisting of the Company’s Disclosure Document (the “Disclosure Document’’) which incorporates the “SEC Reports” of the Company as defined therein, this Subscription Agreement (“Subscription Agreement”) and the, Security Agreement, Collateral Agent Agreement, Note and Warrant and such other documents referred to in the Subscription Agreements and Disclosure Document all in the form approved by the parties. The Subscriber further represents and warrants further that (a) it has such knowledge Subscriber is familiar with and experience in financial and business matters that it is capable of evaluating understands the merits and risks terms of the acquisition of Offering, including the Shares; (b) it rights to which the Subscriber is able entitled under this Agreement as well as the substantial risks relating to bear the economic risks of an investment in the Shares, including, without limitation, the risk of the loss of part or all of its investment and the inability to sell or transfer the Shares for an indefinite period of time; (c) it has adequate financial means of providing for current needs and contingencies and has no need for liquidity in its investment in the Shares; and (d) it does not have an overall commitment to investments which are not readily marketable that is excessive in proportion to its net worth and an investment in the Shares will not cause such overall commitment to become excessivehereby.
2.4 The Subscriber further represents that the Subscriber has reviewed the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 2000 (the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made been furnished by the Company during the course of this transaction with all information regarding the Securities and Exchange Commission (Company which the "SEC") since the filing of the 2000 Form 10-KSBSubscriber, his, her or its investment advisor, attorney and/or accountant has requested or desired to know and has been afforded the opportunity to obtain such information regarding ask questions of and receive answers from duly authorized officers or other representatives of the Company as it has reasonably requested to evaluate concerning the merits Company and risks the terms and conditions of its investment in the Shares. No oral or written representations have been made or oral information furnished to the Subscriber or its advisers in connection with the investment in the SharesOffering.
2.5 The Subscriber represents and warrants that has relied primarily on his, her or its own investigation of the Shares are being acquired, and will be held, pursuant Company in making the Subscriber’s decision to Regulation S ("Regulation S") promulgated under invest in the Securities Act. The certificate representing and has not relied upon any other representations or other information (whether oral or written) from the Shares is not to be delivered within Company, or any agent, employee or affiliate of the United States. The Subscriber is neither a "U.S. person" (Company or any other third party other than as such term is defined set forth in Regulation S) nor is acquiring the Shares for Offering Documents and the account or benefit results of a "U.S. person"Subscriber’s own independent investigation. The Subscriber acknowledges and agrees that Rule 902(oit shall not be entitled to seek any remedies with respect to the Offering from any party other than the Company.
2.6 The Subscriber represents that no Securities were offered or sold to it by means of any form of general solicitation or general advertising, and in connection therewith the Subscriber did not: (A) of Regulation S defines receive or review any advertisement, article, notice or other communication published in a "U.S. person" generally as (a) a natural person resident in the United States; (b) a partnership newspaper or corporation organized or incorporated under the laws of the United States; (c) an estate of which any executor or administrator is a U.S. person; (d) a trust of which any trustee is a U.S. person; (e) an agency or branch of a foreign entity located in the United States; (f) a non-discretionary account magazine or similar account (other than an estate media or trust) held by a dealer broadcast over television or other fiduciary for the benefit radio whether closed circuit, or account of a U.S. persongenerally available; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individualB) resident in attend any seminar meeting or industry investor conference whose attendees were invited by any general solicitation or general advertising.
2.7 The Subscriber understands that the United States; Securities have not been, and (h) a partnership or corporation if (I) organized or incorporated under the laws of any foreign jurisdiction; and (II) formed by a U.S. person principally for the purpose of investing in securities Note Shares will not be, registered under the Securities ActAct by reason of a claimed exemption under the provisions of the Act which depends, unless it in part, upon the Subscriber’s investment intention. In this connection, the Subscriber hereby represents that the Subscriber is organized or incorporatedpurchasing the Securities, and ownedwill acquire the Note Shares, by accredited investors (as defined for the Subscriber’s own account for investment purposes only and not with a view toward the resale or distribution to others and has no contract, undertaking, agreement or other arrangement, in Rule 501(a) of Regulation D under existence or contemplated, to sell, pledge, assign or otherwise transfer the Securities Act) who are not natural persons, estates or trusts. the Note Shares to any other person.
2.8 The Subscriber agrees that the Subscriber will not transfer the Securities or the Note Shares may not be offered or sold in the United States or unless such transfer is subject to "U.S. persons" unless registered an effective registration statement under the Securities Act and regulations thereunder, or pursuant to an exemption therefrom from the registration requirements of the Act. Any such transfer may be subject the receipt of an opinion of counsel in a form and substance satisfactory to the Company to the effect that any proposed transfer or resale is available and that hedging transactions involving the Company's securities may not be conducted unless in compliance with the act and any applicable state securities laws. The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Securities Actand the Note Shares reflecting the foregoing restrictions. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the aforesaid restrictions on the transferability of the Securities and the Note Shares. It is understood that, certificates evidencing the Securities may bear the following or any similar legend:
2.9 The Subscriber agrees to supply the Company, within five (5) days after the Subscriber receives the request therefor from the Company, with such additional information concerning the Subscriber as the Company deems necessary or advisable.
2.6 2.10 The Subscriber understands, acknowledges and agrees with the Company that the Offering is intended to be exempt from registration under the Act by virtue of Section 4(2) of the Act and the provisions of Regulation D adopted under the Act, which is in part dependent upon the truth, completeness and accuracy of the statements made by the Subscriber and Subscriber will hold the Company harmless from all liability, damages, costs and expenses resulting from any breach thereof.
2.11 The Subscriber acknowledges that counsel to the Company will be relying, and may rely, upon information contained in the foregoing in connection with any opinion of counsel given with regard to the issuance of the Shares Offering Documents or otherwise made available to the Subscriber is confidential and any subsequent transfer of the Shares non-public and agrees that all such information shall be kept in confidence by the Subscriber and agrees will neither be used by the Subscriber for the Subscriber’s personal benefit (other than in connection with this Subscription) nor disclosed to advise any third party for any reason, notwithstanding that the Subscriber’s Subscription may not be accepted by the Company.
2.12 The Company is under no obligation to, and there can be no assurance that, the Company will receive or accept subscriptions for the aggregate number of Securities being offered by the Company pursuant to the Offering.
2.13 If the Subscriber is an entity, such Subscriber is a validly existing corporation, limited partnership or limited liability company and its counsel in writing has all requisite corporate, partnership or limited liability company power and authority to invest in the event of any change in any Units pursuant to this Agreement.
2.14 The execution, delivery and performance by such Subscriber of the foregoingTransaction Documents to which such Subscriber is a party have been duly authorized and will each constitute the valid and legally binding obligation of such Subscriber, enforceable against such Subscriber in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally.
2.7 The address set forth below is the Subscriber's true and correct mailing address.
Appears in 1 contract
REPRESENTATIONS BY SUBSCRIBER. The Each Subscriber understands and agrees that the Company is relying and may rely upon the following representations representations, warranties, and warranties agreements made by the such Subscriber in entering into this Agreement:
2.1 The Each Subscriber recognizes that the acquisition purchase of the Shares Securities involves a high degree of risk and is suitable only for a subscriber persons of adequate financial means that has who have no need for liquidity in this investment investment, in that (ia) it may not be able possible to liquidate its the investment in the event of emergency; (iib) transferability is extremely limited; and (iiic) it could sustain in the event of a disposition, a complete loss of its investment could occur.
2.2 Each Subscriber acknowledges that he or she (a) is competent to understand and does understand the nature of the investment, and (b) is able to bear the economic risk of the investment.
2.2 The 2.3 Each Subscriber represents that he or she is an accredited investor as defined in Rule 501 of Regulation D promulgated by the Securities and warrants that Exchange Commission (the Shares are being acquired for its own account, for investment purposes and not with a view to any distribution within the meaning of "SEC") under the Securities Act of 1933, as amended (the "Securities Act"). .
2.4 Each Subscriber acknowledges that he or she has significant prior investment experience, including investment in nonlisted and nonregistered securities, and that he or she has read all of the documents furnished or made available by the Company to evaluate the merits and risks of the investment, recognizes the highly speculative nature of this investment, and is able to bear the economic risk hereby assumed.
2.5 The Subscriber represents that all information regarding the Company which was requested or desired has been furnished; that all other documents which could be reasonably provided have been made available for inspection and review; and that the Subscriber has been afforded the opportunity to ask questions of and receive answers from the Company concerning the terms and conditions of the Private Sale and any additional information which has been requested.
2.6 Each Subscriber hereby acknowledges that this Private Sale of Securities has not been registered with the SEC because it is intended to be a private sale pursuant to Section 4(2) of the Act.
2.7 Each Subscriber represents that the Securities are being purchased for his or her own account, for investment, and not for distribution or resale to others. Each Subscriber agrees that he or she will not sell, assigntransfer, mortgage, pledge, hypothecate, transfer or otherwise dispose of the Securities or any of the Shares portion thereof unless (a) a registration statement they are registered under the Securities Act or unless an exemption from such registration is available.
2.8 Each Subscriber may, with respect thereto is in effect and the prospectus included therein meets the requirements of Section 10 of Company's written consent, transfer the Securities Act, or (b) the Company has received a written opinion of its counsel that, after an investigation of the relevant facts, if such counsel is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer or disposition does not require registration under the Securities Act. The Subscriber consents that the Company may, if it desires, permit the transfer of the Shares by the Subscriber out of its name only when its request for transfer is accompanied by an opinion of counsel satisfactory to the Company that neither the sale nor the proposed transfer does not result of the Securities results in a violation of the Act or any applicable state "blue sky" laws (collectively, the "Securities ActLaws"). The Subscriber agrees to be bound by any requirements of the Securities Act. The Each Subscriber agrees to hold the Company Company, its officer and its controlling persons directors, and their respective heirs, representatives, successors successors, and assigns harmless and to indemnify them against all liabilities, costs costs, and expenses (including attorneys' fees) incurred by them as a result of any sale or distribution of the Securities by the such Subscriber in violation of any securities laws Securities Laws or any misrepresentation herein.
2.3 The 2.9 Each Subscriber represents and warrants further that (a) it has such knowledge and experience in financial and business matters that it is capable consents to the placement of evaluating a legend on the merits and risks of the acquisition of the Shares; (b) it is able to bear the economic risks of an investment in the Shares, including, without limitation, the risk of the loss of part or all of its investment and the inability to sell or transfer certificates evidencing the Shares for an indefinite period of time; (c) it has adequate financial means of providing for current needs and contingencies and has no need for liquidity in its investment in on the Shares; and (d) it does Warrant stating that they have not have an overall commitment to investments which are not readily marketable that is excessive in proportion to its net worth and an investment in the Shares will not cause such overall commitment to become excessive.
2.4 The Subscriber has reviewed the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 2000 (the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made by the Company with the Securities and Exchange Commission (the "SEC") since the filing of the 2000 Form 10-KSB, and has been afforded the opportunity to obtain such information regarding the Company as it has reasonably requested to evaluate the merits and risks of its investment in the Shares. No oral or written representations have been made or oral information furnished to the Subscriber or its advisers in connection with the investment in the Shares.
2.5 The Subscriber represents and warrants that the Shares are being acquired, and will be held, pursuant to Regulation S ("Regulation S") promulgated under the Securities Act. The certificate representing the Shares is not to be delivered within the United States. The Subscriber is neither a "U.S. person" (as such term is defined in Regulation S) nor is acquiring the Shares for the account or benefit of a "U.S. person". The Subscriber acknowledges that Rule 902(o) of Regulation S defines a "U.S. person" generally as (a) a natural person resident in the United States; (b) a partnership or corporation organized or incorporated under the laws of the United States; (c) an estate of which any executor or administrator is a U.S. person; (d) a trust of which any trustee is a U.S. person; (e) an agency or branch of a foreign entity located in the United States; (f) a non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individual) resident in the United States; and (h) a partnership or corporation if (I) organized or incorporated under the laws of any foreign jurisdiction; and (II) formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized Act and setting forth or incorporated, and owned, by accredited investors (as defined in Rule 501(a) of Regulation D under the Securities Act) who are not natural persons, estates or trusts. The Subscriber agrees that the Shares may not be offered or sold in the United States or to "U.S. persons" unless registered under the Securities Act or an exemption therefrom is available and that hedging transactions involving the Company's securities may not be conducted unless in compliance with the Securities Act.
2.6 The Subscriber acknowledges that counsel referring to the Company will be relying, restrictions on transferability and may rely, upon the foregoing in connection with any opinion of counsel given with regard to the issuance of the Shares to the Subscriber and any subsequent transfer of the Shares by the Subscriber and agrees to advise the Company and its counsel in writing in the event of any change in any of the foregoingsale thereof.
2.7 The address set forth below is the Subscriber's true and correct mailing address.
Appears in 1 contract
REPRESENTATIONS BY SUBSCRIBER. The Subscriber understands and agrees that In addition to the Company is relying and may rely upon the following representations and warranties made by the Subscriber set forth in entering into Article VI hereof and elsewhere in this Agreement, the Subscriber, represents, warrants and acknowledges to the Company that:
2.1 The Subscriber recognizes that (i) the acquisition purchase of the Shares Securities involves a high degree of risk and is suitable speculative, and only for a subscriber investors who can afford the loss of adequate financial means that has no need for liquidity their entire investment should consider investing in this investment in that the Company and the Securities; (iii) it the Subscriber may not be able to liquidate its investment investment; (iii) the transferability of the Securities is extremely limited; and, (iv) in the event of emergency; (ii) transferability is extremely limited; and (iii) it a disposition of the Securities, the Subscriber could sustain a complete the loss of its entire investment.
2.2 The Subscriber represents and warrants that the Shares are being acquired for its own account, for investment purposes and not with a view to any distribution within the meaning of the Securities Act of 1933Subscriber is an “accredited investor”, as amended (the "Securities Act"). The Subscriber will not sell, assign, mortgage, pledge, hypothecate, transfer or otherwise dispose of any of the Shares unless (a) a registration statement under the Securities Act with respect thereto is in effect and the prospectus included therein meets the requirements of Section 10 of the Securities Act, or (b) the Company has received a written opinion of its counsel that, after an investigation of the relevant facts, such counsel is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer or disposition does not require registration under the Securities Act. The Subscriber consents that the Company may, if it desires, permit the transfer of the Shares indicated by the Subscriber out of its name only when its request for transfer is accompanied by an opinion of counsel satisfactory Subscriber’s responses to the Company that the proposed transfer does not result questions contained in a violation of the Securities Act. The Subscriber agrees to be bound by any requirements of the Securities Act. The Subscriber agrees to hold the Company and its controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any sale or distribution by the Subscriber in violation of any securities laws or any misrepresentation hereinArticle VI.
2.3 The Subscriber hereby acknowledges that it has been furnished with, or has had an opportunity to acquire and carefully review, the “Offering Documents” consisting of the Company’s Private Placement Memorandum (the “Disclosure Document’’) which incorporates the “SEC Reports” of the Company as defined therein, this Subscription Agreement (“Subscription Agreement”), the Warrant and such other documents referred to in the Subscription Agreement and Disclosure Document all in the form approved by the parties. The Subscriber further represents and warrants further that (a) it has such knowledge Subscriber is familiar with and experience in financial and business matters that it is capable of evaluating understands the merits and risks terms of the acquisition of Offering, including the Shares; (b) it rights to which the Subscriber is able entitled under this Agreement as well as the substantial risks relating to bear the economic risks of an investment in the Shares, including, without limitation, the risk of the loss of part or all of its investment and the inability to sell or transfer the Shares for an indefinite period of time; (c) it has adequate financial means of providing for current needs and contingencies and has no need for liquidity in its investment in the Shares; and (d) it does not have an overall commitment to investments which are not readily marketable that is excessive in proportion to its net worth and an investment in the Shares will not cause such overall commitment to become excessivehereby.
2.4 The Subscriber further represents that the Subscriber has reviewed the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 2000 (the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made been furnished by the Company during the course of this transaction with all information regarding the Securities and Exchange Commission (Company which the "SEC") since the filing of the 2000 Form 10-KSBSubscriber, his, her or its investment advisor, attorney and/or accountant has requested or desired to know and has been afforded the opportunity to obtain such information regarding ask questions of and receive answers from duly authorized officers or other representatives of the Company as it has reasonably requested to evaluate concerning the merits Company and risks the terms and conditions of its investment in the Shares. No oral or written representations have been made or oral information furnished to the Subscriber or its advisers in connection with the investment in the SharesOffering.
2.5 The Subscriber represents and warrants that has relied primarily on his, her or its own investigation of the Shares are being acquired, and will be held, pursuant Company in making the Subscriber’s decision to Regulation S ("Regulation S") promulgated under invest in the Securities Act. The certificate representing and has not relied upon any other representations or other information (whether oral or written) from the Shares is not to be delivered within Company, or any agent, employee or affiliate of the United States. The Subscriber is neither a "U.S. person" (Company or any other third party other than as such term is defined set forth in Regulation S) nor is acquiring the Shares for Offering Documents and the account or benefit results of a "U.S. person"Subscriber’s own independent investigation. The Subscriber acknowledges and agrees that Rule 902(oit shall not be entitled to seek any remedies with respect to the Offering from any party other than the Company.
2.6 The Subscriber represents that no Securities were offered or sold to it by means of any form of general solicitation or general advertising, and in connection therewith the Subscriber did not: (A) of Regulation S defines receive or review any advertisement, article, notice or other communication published in a "U.S. person" generally as (a) a natural person resident in the United States; (b) a partnership newspaper or corporation organized or incorporated under the laws of the United States; (c) an estate of which any executor or administrator is a U.S. person; (d) a trust of which any trustee is a U.S. person; (e) an agency or branch of a foreign entity located in the United States; (f) a non-discretionary account magazine or similar account (other than an estate media or trust) held by a dealer broadcast over television or other fiduciary for the benefit radio whether closed circuit, or account of a U.S. persongenerally available; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individualB) resident in attend any seminar meeting or industry investor conference whose attendees were invited by any general solicitation or general advertising.
2.7 The Subscriber understands that the United States; Securities have not been, and (h) a partnership or corporation if (I) organized or incorporated under the laws of any foreign jurisdiction; and (II) formed by a U.S. person principally for the purpose of investing in securities will not be, registered under the Securities ActAct by reason of a claimed exemption under the provisions of the Act which depends, unless it in part, upon the Subscriber’s investment intention. In this connection, the Subscriber hereby represents that the Subscriber is organized or incorporatedpurchasing the Securities, and ownedwill acquire the Underlying Securities, by accredited investors (as defined for the Subscriber’s own account for investment purposes only and not with a view toward the resale or distribution to others and has no contract, undertaking, agreement or other arrangement, in Rule 501(a) of Regulation D under existence or contemplated, to sell, pledge, assign or otherwise transfer the Securities Act) who are not natural persons, estates or trusts. the Underlying Securities to any other person.
2.8 The Subscriber agrees that the Shares may Subscriber will not be offered transfer the Securities or sold in the United States or Underlying Securities unless such transfer is subject to "U.S. persons" unless registered an effective registration statement under the Securities Act and regulations thereunder, or pursuant to an exemption therefrom from the registration requirements of the Act. Any such transfer may be subject the receipt of an opinion of counsel in a form and substance satisfactory to the Company to the effect that any proposed transfer or resale is available and that hedging transactions involving the Company's securities may not be conducted unless in compliance with the act and any applicable state securities laws. The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Securities Actand the Underlying Securities reflecting the foregoing restrictions. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the aforesaid restrictions on the transferability of the Securities and the Underlying Securities. It is understood that, certificates evidencing the Securities may bear the following or any similar legend:
2.9 The Subscriber agrees to supply the Company, within five (5) days after the Subscriber receives the request therefor from the Company, with such additional information concerning the Subscriber as the Company deems necessary or advisable.
2.6 2.10 The Subscriber understands, acknowledges and agrees with the Company that the Offering is intended to be exempt from registration under the Act by virtue of Section 4(2) of the Act and the provisions of Regulation D adopted under the Act, which is in part dependent upon the truth, completeness and accuracy of the statements made by the Subscriber and Subscriber will hold the Company harmless from all liability, damages, costs and expenses resulting from any breach thereof.
2.11 The Subscriber acknowledges that counsel to the Company will be relying, and may rely, upon information contained in the foregoing in connection with any opinion of counsel given with regard to the issuance of the Shares Offering Documents or otherwise made available to the Subscriber is confidential and any subsequent transfer of the Shares non-public and agrees that all such information shall be kept in confidence by the Subscriber and agrees will neither be used by the Subscriber for the Subscriber’s personal benefit (other than in connection with this Subscription) nor disclosed to advise any third party for any reason, notwithstanding that the Subscriber’s Subscription may not be accepted by the Company.
2.12 The Company is under no obligation to, and there can be no assurance that, the Company will receive or accept subscriptions for the aggregate number of Securities being offered by the Company pursuant to the Offering.
2.13 If the Subscriber is an entity, such Subscriber is a validly existing corporation, limited partnership or limited liability company and its counsel in writing has all requisite corporate, partnership or limited liability company power and authority to invest in the event of any change in any Units pursuant to this Agreement.
2.14 The execution, delivery and performance by such Subscriber of the foregoingOffering Documents to which such Subscriber is a party have been duly authorized and will each constitute the valid and legally binding obligation of such Subscriber, enforceable against such Subscriber in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally.
2.7 The address set forth below is the Subscriber's true and correct mailing address.
Appears in 1 contract
REPRESENTATIONS BY SUBSCRIBER. The In consideration of the Company’s issuance of the Securities, the Subscriber understands and agrees that the Company is relying and may rely upon makes the following representations and warranties made to the Company and to its principals, which warranties and representations shall survive the issuance of the Securities by the Company:
(a) Prior to the time of purchase of any of The Securities, the Subscriber in entering into has carefully reviewed this Agreement:
2.1 , and the Company’s filings with the Securities and Exchange Commission (the foregoing materials, together with this Agreement and any documents which may have been made available upon request as reflected therein, collectively referred to as the “Public Information”). The Subscriber recognizes that has had the acquisition opportunity to ask questions and receive any additional information from persons acting on behalf of the Shares involves a high degree Company to verify Subscriber’s understanding of risk the terms thereof and is suitable only for a subscriber of adequate financial means that has no need for liquidity in this investment in that (i) it may not be able to liquidate its investment in the event of emergency; (ii) transferability is extremely limited; Company’s business and (iii) it could sustain a complete loss of its investmentstatus thereof.
2.2 (b) The Subscriber represents and warrants acknowledges that Subscriber has not seen, received, been presented with, or been solicited by any leaflet, public promotional meeting, newspaper or magazine article or advertisement, radio or television advertisement, or any other form of advertising or general solicitation with respect to the Shares Securities.
(c) The Securities are being acquired purchased for its Subscriber’s own account, account for long-term investment purposes and not with a view to immediately re-sell the Securities. No other person or entity will have any distribution within the meaning of the Securities Act of 1933, as amended (the "Securities Act"). The Subscriber will not sell, assign, mortgage, pledge, hypothecate, transfer direct or otherwise dispose of any of the Shares unless (a) a registration statement under the Securities Act with respect thereto is in effect and the prospectus included therein meets the requirements of Section 10 of the Securities Actindirect beneficial interest in, or (b) right to, the Company has received a written opinion of Securities. Subscriber or its counsel that, after an investigation of the relevant facts, such counsel is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer agents or disposition does not require registration under the Securities Act. The Subscriber consents that the Company may, if it desires, permit the transfer of the Shares by the Subscriber out of its name only when its request for transfer is accompanied by an opinion of counsel satisfactory to the Company that the proposed transfer does not result in a violation of the Securities Act. The Subscriber agrees to be bound by any requirements of the Securities Act. The Subscriber agrees to hold the Company and its controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any sale or distribution by the Subscriber in violation of any securities laws or any misrepresentation herein.
2.3 The Subscriber represents and warrants further that (a) it has investment advisors have such knowledge and experience in financial and business matters that will enable Subscriber to utilize the information made available to it in connection with the purchase of the Securities to evaluate the merits and risks thereof and to make an informed investment decision.
(d) The Subscriber hereby acknowledges that the issuance of the Securities has not been reviewed by the United States Securities and Exchange Commission (the “SEC”) nor any state regulatory authority since the issuance of the Securities is intended to be exempt from the registration requirements of Section 5 of the Securities Act, pursuant to Regulation D. Subscriber acknowledges that the Securities have not been registered under the Securities Act or qualified under the under the securities laws of any state or other jurisdiction or any other regulatory authority, or any other applicable blue sky laws, in reliance, in part, on Subscriber’s representations, warranties and agreements made herein.
(e) The Subscriber represents, warrants and agrees that the Company and the officers of the Company (the “Company’s Officers”) are under no obligation to register or qualify the Securities under the Securities Act or under any state securities law, or to assist the undersigned in complying with any exemption from registration and qualification.
(f) The Subscriber represents that Subscriber meets the criteria for participation because: (i) Subscriber has a preexisting personal or business relationship with the Company or one or more of its partners, officers, directors or controlling persons; or (ii) by reason of Subscriber’s business or financial experience, or by reason of the business or financial experience of its financial advisors who are unaffiliated with, and are not compensated, directly or indirectly, by the Company or any affiliate or selling agent of the Company, Subscriber is capable of evaluating the risk and merits of an investment in the Securities and risks of protecting its own interests.
(g) The Subscriber represents that Subscriber is an “accredited Subscriber” within the acquisition meaning of Rule 501 of Regulation D under the Shares; (b) it Securities Act as indicated by the Subscriber’s responses to the questions contained in the Certificate of Accredited Subscriber Status attached hereto as Exhibit C, and that the Subscriber is able to bear the economic risks risk of an investment in the SharesSecurities.
(h) The Subscriber understands that the Securities are illiquid, includingand until registered with the SEC, without limitationor an exemption from registration becomes available, the risk of the loss of part or all of its investment cannot be readily sold as there will not be a public market for them, and the inability that Subscriber may not be able to sell or transfer dispose of the Shares Securities, or to utilize the Securities as collateral for an indefinite period of time; (c) a loan. Subscriber must not purchase the Securities unless Subscriber has liquid assets sufficient to assure Subscriber that such purchase will cause it has adequate no undue financial means of providing difficulties, and that Subscriber can still provide for current needs and contingencies possible personal contingencies, and has no need that the commitment herein for liquidity the Securities, combined with other investments of Subscriber, is reasonable in its investment in the Shares; and (d) it does not have an overall commitment to investments which are not readily marketable that is excessive in proportion relation to its net worth worth.
(i) The Subscriber understands that the right to transfer the Securities will be restricted unless the transfer is not in violation of the Securities Act, and any other applicable state securities laws (including investment suitability standards), that the Company will not consent to a transfer of any of The Securities unless the transferee represents that such transferee meets the financial suitability standards required of an initial participant, and that the Company has the right, in its absolute discretion, to refuse to consent to such transfer.
(j) The Subscriber has been advised to consult with its own attorney or attorneys regarding all legal matters concerning an investment in the Shares will not cause such overall commitment Company and the tax consequences of purchasing the Securities, and has done so, to become excessivethe extent Subscriber considers necessary.
2.4 (k) The Subscriber has reviewed acknowledges that the tax consequences of investing in the Company will depend on particular circumstances, and neither the Company's Annual Report on Form 10-KSB , the Company’s Officers, any other Subscribers, nor the partners, shareholders, members, managers, agents, officers, directors, employees, affiliates or consultants of any of them, will be responsible or liable for the fiscal year ended October 31, 2000 tax consequences to Subscriber of an investment in the Company. Subscriber will look solely to and rely upon its own advisers with respect to the tax consequences of this investment.
(l) The Subscriber acknowledges that some of the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made information provided by the Company with the Securities and Exchange Commission (the "SEC") since the filing of the 2000 Form 10-KSB, and has been afforded the opportunity to obtain such information regarding the Company as it has reasonably requested to evaluate the merits and risks of its investment in the Shares. No oral or written representations have been made or oral information furnished to the Subscriber or its advisers in connection with the investment purchase of the Securities constitutes “material non-public information” within the meaning of Rule 10b-5 of the Exchange Act. Subscriber acknowledges and agrees that Subscriber is prohibited from any buying or selling of the Company’s securities on the basis of this material non-public information until after the information either becomes publicly available by the Company (such as in a Current Report on Form 8-K or in the SharesCompany’s Form 10-K or Form 10-Q) or ceases to be material, and in no event for at least thirty (30) days from the date hereof. Subscriber acknowledges that it is aware of the restrictions of applicable securities laws, including Regulation FD and Sections 9 and 10 of the Exchange Act and Rule 10b-5 under the Exchange Act, relating to the trading in securities of an issuer, including while in possession of material non public information regarding that issuer.
2.5 (m) All information which the Subscriber has provided to the Company concerning the Subscriber, including but not limited to, its financial position and its knowledge of financial and business matters, is truthful, accurate, correct, and complete as of the date set forth herein.
(n) Each certificate or instrument representing securities issuable pursuant to this Agreement will be endorsed with the following legend: THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE TRANSFER IS MADE IN COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES WHICH IS REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
(o) The Subscriber hereby represents that the address of the Subscriber furnished by Subscriber on the signature page hereof is the Subscriber’s principal residence if Subscriber is an individual or its principal business address if it is a corporation or other entity.
(p) The Subscriber represents and warrants that the Shares are being acquiredSubscriber has full power and authority (corporate, statutory and will be heldotherwise) to execute and deliver this Agreement and to purchase the Securities. This Agreement constitutes the legal, pursuant to Regulation S valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
("Regulation S"q) promulgated under If the Securities Act. The certificate representing the Shares is not to be delivered within the United States. The Subscriber is neither a "U.S. person" corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, it is authorized and qualified to invest in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
(as such term is defined in Regulation Sr) nor is acquiring the Shares for the account or benefit of a "U.S. person". The Subscriber acknowledges that Rule 902(o) if he or she is a Registered Representative of Regulation S defines a "U.S. person" generally as (a) a natural person resident in FINRA member firm, he or she must give such firm the United States; (b) a partnership or corporation organized or incorporated under notice required by the laws FINRA’s Rules of the United States; (c) an estate Fair Practice, receipt of which any executor or administrator is a U.S. person; (d) a trust of which any trustee is a U.S. person; (e) an agency or branch of a foreign entity located in the United States; (f) a non-discretionary account or similar account (other than an estate or trust) held must be acknowledged by a dealer or other fiduciary for the benefit or account of a U.S. person; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individual) resident in the United States; and (h) a partnership or corporation if (I) organized or incorporated under the laws of any foreign jurisdiction; and (II) formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) of Regulation D under the Securities Act) who are not natural persons, estates or trusts. The Subscriber agrees that the Shares may not be offered or sold in the United States or to "U.S. persons" unless registered under the Securities Act or an exemption therefrom is available and that hedging transactions involving the Company's securities may not be conducted unless in compliance with the Securities Actsuch firm.
2.6 (s) The Subscriber acknowledges that counsel to the Company will be relyingat such time, and may relyif ever, upon the foregoing in connection with any opinion of counsel given with regard to the issuance of the Shares to the Subscriber and any subsequent transfer of the Shares by the Subscriber and agrees to advise the Company and its counsel in writing in the event of any change in as any of the foregoingSecurities is registered with the SEC, sales of such Securities will be subject to state securities laws.
2.7 (t) The address set forth below is Subscriber agrees not to issue any public statement with respect to the Subscriber's true ’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and correct mailing addressthe Company without the Company’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulation.
Appears in 1 contract
REPRESENTATIONS BY SUBSCRIBER. The Subscriber understands and agrees that In consideration of the Company is relying and may rely upon Company’s acceptance of participation, I make the following representations and warranties made by and agreements to the Subscriber Company, to its principals, and to participating broker-dealers, if any, jointly and severally, which warranties and representations and agreements shall survive any acceptance of my participation in entering into this Agreementthe Shares:
2.1 The Subscriber recognizes that the acquisition of the Shares involves a high degree of risk and is suitable only for a subscriber of adequate financial means that has no need for liquidity in this investment in that (ia) it may not be able to liquidate its investment in the event of emergency; (ii) transferability is extremely limited; and (iii) it could sustain a complete loss of its investment.
2.2 The Subscriber represents and warrants that it is in receipt of and that it has carefully read the Shares are being acquired following items:
(i) The Company’s Form 10-K for its own accountthe period ended December 31, for investment purposes and not with a view to any distribution within the meaning of the Securities Act of 1933, as amended 2003 (the "Securities Act"“Form 10-K”);
(ii) The Company’s Form SB-2 (the “SB-2”) filed on June 29, 2004 and particularly the Risk Factors contained therein.
(iii) All other documents filed by the Company with the SEC subsequent to the Company’s Form 10-K and prior to the date of this Agreement, particularly the SB-2. The Subscriber will not sell, assign, mortgage, pledge, hypothecate, transfer or otherwise dispose of any of documents listed shall be referred to herein as the Shares unless (a) a registration statement under the Securities Act with respect thereto is in effect and the prospectus included therein meets the requirements of Section 10 of the Securities Act, or “Disclosure Documents.”
(b) Subscriber has been furnished with and has carefully read the Disclosure Documents including the Risk Factors listed in the SB-2 and is familiar with the terms of the Offering. With respect to individual or partnership tax and other economic considerations involved in this investment, Subscriber is not relying on the Company (or any agent or representative). Subscriber has received a written opinion of its counsel thatcarefully considered and has, after an investigation of the relevant facts, such counsel is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer or disposition does not require registration under the Securities Act. The Subscriber consents that the Company may, if it desires, permit the transfer of the Shares by the Subscriber out of its name only when its request for transfer is accompanied by an opinion of counsel satisfactory to the Company that extent Subscriber believes such discussion necessary, discussed with Subscriber’s legal, tax, accounting and financial advisers the proposed transfer does not result in a violation of the Securities Act. The Subscriber agrees to be bound by any requirements of the Securities Act. The Subscriber agrees to hold the Company and its controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any sale or distribution by the Subscriber in violation of any securities laws or any misrepresentation herein.
2.3 The Subscriber represents and warrants further that (a) it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the acquisition of the Shares; (b) it is able to bear the economic risks suitability of an investment in the Shares, including, without limitation, the risk of the loss of part or all of its investment and the inability to sell or transfer the Common Shares for an indefinite period of time; Subscriber’s particular tax and financial situation.
(c) it Subscriber has adequate financial means had an opportunity to inspect relevant documents relating to the organization and operations of providing the Company. Subscriber acknowledges that all documents, records and books pertaining to this investment which Subscriber has requested have been made available for current needs inspection by Subscriber and contingencies and has no need for liquidity in its investment in the Shares; and Subscriber’s attorney, accountant or other adviser(s).
(d) it does not Subscriber and/or Subscriber’s advisor(s) has/have an overall commitment had a reasonable opportunity to investments which are not readily marketable that is excessive in proportion ask questions of and receive answers and to its net worth and an investment in request additional relevant information from a person or persons acting on behalf of the Shares will not cause such overall commitment to become excessiveCompany concerning the Offering.
2.4 The Subscriber has reviewed the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 2000 (the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made by the Company with the Securities and Exchange Commission (the "SEC") since the filing of the 2000 Form 10-KSB, and has been afforded the opportunity to obtain such information regarding the Company as it has reasonably requested to evaluate the merits and risks of its investment in the Shares. No oral or written representations have been made or oral information furnished to the Subscriber or its advisers in connection with the investment in the Shares.
2.5 The Subscriber represents and warrants that the Shares are being acquired, and will be held, pursuant to Regulation S ("Regulation S") promulgated under the Securities Act. The certificate representing the Shares is not to be delivered within the United States. The Subscriber is neither a "U.S. person" (as such term is defined in Regulation S) nor is acquiring the Shares for the account or benefit of a "U.S. person". The Subscriber acknowledges that Rule 902(o) of Regulation S defines a "U.S. person" generally as (a) a natural person resident in the United States; (b) a partnership or corporation organized or incorporated under the laws of the United States; (c) an estate of which any executor or administrator is a U.S. person; (d) a trust of which any trustee is a U.S. person; (e) an agency Subscriber is not subscribing for the Common Shares as a result of or branch of a foreign entity located subsequent to any advertisement, article, notice or other communication published in the United States; any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar.
(f) a non-discretionary account or similar account (other than Subscriber is an estate or trust) held by a dealer or other fiduciary for “accredited investor,” within the benefit or account meaning of a U.S. person; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individual) resident in the United States; and (h) a partnership or corporation if (I) organized or incorporated under the laws of any foreign jurisdiction; and (II) formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) of Regulation D under the Securities ActAct (“Regulation D”). Subscriber, by reason of Subscriber’s business or financial experience can be reasonably assumed to have the capacity to protect Subscriber’s own interests in connection with the transaction. Subscriber further acknowledges that Subscriber has read the written materials provided by the Company.
(g) who are not natural personsSubscriber has adequate means of providing for Subscriber’s current financial needs and contingencies, estates or trusts. The is able to bear the substantial economic risks of an investment in the Common Shares for an indefinite period of time, has no need for liquidity in such investment and, at the present time, could afford a complete loss of such investment.
(h) Subscriber agrees has such knowledge and experience in financial, tax and business matters so as to enable Subscriber to use the information made available to Subscriber in connection with the Offering to evaluate the merits and risks of an investment in the Common Shares and to make an informed investment decision with respect thereto.
(i) Subscriber acknowledges that the Common Shares may herein subscribed for have not be offered or sold in the United States or to "U.S. persons" unless been registered under the Securities Act or under any State Act. Subscriber understands further that in absence of an effective Registration Statement, the Common Shares can only be sold pursuant to some exemption therefrom is available and from registration, such as Rule 144 of the Act, which requires, among other conditions, that hedging transactions involving the Company's securities may not Common Shares must be conducted unless in compliance with the Securities Actheld for a minimum of one (1) year.
2.6 The (j) Subscriber recognizes that investment in the Common Shares involves substantial risks. Subscriber acknowledges that counsel Subscriber has reviewed the risk factors identified within the Disclosure Documents and on Attachment A hereof. Subscriber further recognizes that no Federal or state agencies have passed upon this offering of the Common Shares or made any finding or determination as to the Company will be relyingfairness of this investment.
(k) Subscriber acknowledges that each certificate representing the Common Shares shall contain a legend substantially in the following form: THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) OR UNDER APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AVAILABLE EXEMPTIONS FROM SUCH REGISTRATION, PROVIDED THAT THE SELLER DELIVERS TO THE COMPANY AN OPINION OF COUNSEL (WHICH OPINION AND COUNSEL ARE REASONABLY SATISFACTORY TO THE COMPANY) CONFIRMING THE AVAILABILITY OF SUCH EXEMPTION. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
(l) If this Agreement is executed and may relydelivered on behalf of a partnership, upon corporation, trust or estate: (i) such partnership, corporation, trust or estate has the foregoing full legal right and power and all authority and approval required (a) to execute and deliver, or authorize execution and delivery of, this Agreement and all other instruments executed and delivered by or on behalf of such partnership, corporation, trust or estate in connection with any opinion of counsel given with regard to the issuance purchase of the Common Shares, (b) to delegate authority pursuant to a power of attorney and (c) to purchase and hold such Common Shares; (ii) the signature of the party signing on behalf of such partnership, corporation, trust or estate is binding upon such partnership, corporation, trust or estate; and (iii) such partnership, corporation or trust has not been formed for the specific purpose of acquiring the Common Shares, unless each beneficial owner of such entity is qualified as an “accredited investor” within the meaning of Regulation D and has submitted information substantiating such individual qualification.
(m) If Subscriber is a retirement plan or is investing on behalf of a retirement plan, Subscriber acknowledges that investment in the Common Shares poses risks in addition to those associated with other investments, including the inability to use losses generated by an investment in the Common Shares to offset taxable income.
(n) The information furnished by Subscriber in the Subscriber Questionnaire signed by Subscriber is true and any subsequent transfer accurate as of the Shares by the Subscriber and agrees to advise the Company and its counsel in writing in the event of any change in any of the foregoingdate thereof.
2.7 The address set forth below is the Subscriber's true and correct mailing address.
Appears in 1 contract
REPRESENTATIONS BY SUBSCRIBER. The Subscriber understands and agrees that the Company is relying and may rely upon the following representations and warranties made by the Subscriber in entering into this Agreement:
2.1 The Subscriber recognizes that the acquisition of the Common Shares and the Warrants involves a high degree of risk and is suitable only for a subscriber persons of adequate financial means that has who have no need for liquidity in this investment in that (i) it he may not be able to liquidate its investment in the event of emergency; (ii) transferability is extremely limited; and (iii) it could sustain a complete loss of its his investment.
2.2 The Subscriber represents that he (i) is competent to understand and warrants does understand the nature of this investment; and (ii) is able to bear the economic risk of this investment.
2.3 The Subscriber represents that the Shares are being acquired for its own account, for investment purposes and not with a view to any distribution within the meaning he 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 1933 Act"), as a result of application to him of the criteria set forth on Exhibit A attached hereto (please indicate on such Exhibit A by a checkmark the one or more criteria which apply).
2.4 The Subscriber acknowledges that he has significant prior investment experience, including investment in restricted securities, and that he has read all of the documents furnished or made available by the Company to him to evaluate the merits and risks of such an investment on his behalf.
2.5 The Subscriber hereby represents that he has been furnished by the Company with the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 1999 and Quarterly Report on Form 10-QSB for the fiscal quarter ended January 31, 2000 and all other information regarding the Company which he had requested or desired to know; that all documents which could be reasonably provided have been made available for his inspection and review; that he has been afforded the opportunity to ask questions of and receive answers from duly authorized representatives of the Company concerning the terms and conditions of the offering, and any additional information which he had requested; and that he has had the opportunity to consult with his own tax or financial advisor concerning an investment in the Company.
2.6 The Subscriber hereby acknowledges that this offering of Common Shares and Warrants has not been reviewed by the Securities and Exchange Commission (the "SEC") because of the Company's representations that this is intended to be a non-public offering pursuant to Section 4(2) of the 1933 Act and Rule 506 of Regulation D promulgated thereunder. The Subscriber represents that the Common Shares and Warrants are being acquired for his own account, for investment and not for distribution or resale to others. The Subscriber agrees that he will not sell, assign, mortgage, pledge, hypothecate, transfer or otherwise dispose of the Common Shares and/or Warrants, or any of the Shares portion thereof, unless (a) a registration statement they are registered under the Securities 1933 Act with respect thereto or unless an exemption from such registration is in effect and the prospectus included therein meets the requirements of Section 10 of the Securities Act, or (b) the Company has received a written opinion of its counsel that, after an investigation of the relevant facts, such counsel is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer or disposition does not require registration under the Securities Act. available.
2.7 The Subscriber consents that the Company may, if it he desires, permit the transfer of the Common Shares and/or Warrants by the Subscriber out of its name only when its his request for transfer is accompanied by an opinion of counsel satisfactory to the Company that neither the sale nor the proposed transfer does not result results in a violation of the 1933 Act or any applicable state "blue sky" laws (collectively, "Securities ActLaws"). The Subscriber agrees to be bound by any requirements of the such Securities ActLaws. The Subscriber agrees to hold the Company and its controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any sale or distribution by the undersigned Subscriber in violation of any securities laws Securities Laws or any misrepresentation herein.
2.3 2.8 The Subscriber acknowledges and agrees that the Company is relying on the Subscriber's representations contained in this Agreement in determining whether to accept this subscription.
2.9 The Subscriber consents to the placement of a legend on the certificates evidencing the Common Shares and Warrants stating that they have not been registered under the Act and setting forth or referring to the restrictions on transferability and sale thereof. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the restrictions on the transferability of the Common Shares and Warrants.
2.10 The Subscriber represents and warrants further that (a) it has such knowledge and experience in financial and business matters that it is capable of evaluating not been formed within the merits and risks of the acquisition of the Shares; last six months, (b) it is able has not been formed to bear purchase the economic risks of an investment in the Shares, including, without limitation, the risk of the loss of part or all of its investment Common Shares and the inability to sell or transfer the Shares for an indefinite period of time; Warrants and (c) it has adequate financial means the corporate officer signing below is authorized to subscribe for the Common Shares and Warrants and sign on behalf of providing for current needs and contingencies and has no need for liquidity in its investment in the Shares; and (d) it does not have an overall commitment to investments which are not readily marketable that is excessive in proportion to its net worth and an investment in the Shares will not cause such overall commitment to become excessiveSubscriber.
2.4 The Subscriber has reviewed the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 2000 (the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made by the Company with the Securities and Exchange Commission (the "SEC") since the filing of the 2000 Form 10-KSB, and has been afforded the opportunity to obtain such information regarding the Company as it has reasonably requested to evaluate the merits and risks of its investment in the Shares. No oral or written representations have been made or oral information furnished to the Subscriber or its advisers in connection with the investment in the Shares.
2.5 The Subscriber represents and warrants that the Shares are being acquired, and will be held, pursuant to Regulation S ("Regulation S") promulgated under the Securities Act. The certificate representing the Shares is not to be delivered within the United States. The Subscriber is neither a "U.S. person" (as such term is defined in Regulation S) nor is acquiring the Shares for the account or benefit of a "U.S. person". The Subscriber acknowledges that Rule 902(o) of Regulation S defines a "U.S. person" generally as (a) a natural person resident in the United States; (b) a partnership or corporation organized or incorporated under the laws of the United States; (c) an estate of which any executor or administrator is a U.S. person; (d) a trust of which any trustee is a U.S. person; (e) an agency or branch of a foreign entity located in the United States; (f) a non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individual) resident in the United States; and (h) a partnership or corporation if (I) organized or incorporated under the laws of any foreign jurisdiction; and (II) formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) of Regulation D under the Securities Act) who are not natural persons, estates or trusts. The Subscriber agrees that the Shares may not be offered or sold in the United States or to "U.S. persons" unless registered under the Securities Act or an exemption therefrom is available and that hedging transactions involving the Company's securities may not be conducted unless in compliance with the Securities Act.
2.6 The Subscriber acknowledges that counsel to the Company will be relying, and may rely, upon the foregoing in connection with any opinion of counsel given with regard to the issuance of the Shares to the Subscriber and any subsequent transfer of the Shares by the Subscriber and agrees to advise the Company and its counsel in writing in the event of any change in any of the foregoing.
2.7 2.11 The address set forth below is the SubscriberSubscribers's true and correct mailing addressresidence.
2.12 The information provided by the Subscriber herein in connection with this investment is accurate and complete as of the date of the execution of this Subscription Agreement.
Appears in 1 contract
REPRESENTATIONS BY SUBSCRIBER. The Subscriber understands and agrees that In addition to the Company is relying and may rely upon the following representations and warranties made by the Subscriber set forth in entering into Article V and elsewhere in this Agreement, the Subscriber, represents, warrants and acknowledges to the Company that:
2.1 The Subscriber recognizes that that: (i) the acquisition purchase of the Shares Special Warrants involves a high degree of risk risk, is speculative and is suitable only for a investors who can afford the loss of their entire investment should consider investing in the Company and/or the Special Warrants; (ii) the subscriber of adequate financial means that has no need for liquidity in this investment in that (i) it may not be able to liquidate its investment investment; (iii) transferability of the Shares is extremely limited; and, (iv) in the event of emergency; (ii) transferability is extremely limited; and (iii) it could a disposition of the Special Warrants, the Subscriber would sustain a complete the loss of its entire investment.
2.2 The Subscriber represents and warrants that the Shares are being acquired for its own account, for investment purposes and not with a view to any distribution within the meaning of the Securities Act of 1933Subscriber is an "accredited investor", as amended (the "Securities Act"). The Subscriber will not sell, assign, mortgage, pledge, hypothecate, transfer or otherwise dispose of any of the Shares unless (a) a registration statement under the Securities Act with respect thereto is in effect and the prospectus included therein meets the requirements of Section 10 of the Securities Act, or (b) the Company has received a written opinion of its counsel that, after an investigation of the relevant facts, such counsel is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer or disposition does not require registration under the Securities Act. The Subscriber consents that the Company may, if it desires, permit the transfer of the Shares indicated by the Subscriber out of its name only when its request for transfer is accompanied by an opinion of counsel satisfactory Subscriber's responses to the Company that the proposed transfer does not result questions contained in a violation of the Securities Act. The Subscriber agrees to be bound by any requirements of the Securities Act. The Subscriber agrees to hold the Company and its controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any sale or distribution by the Subscriber in violation of any securities laws or any misrepresentation herein.Article V.
2.3 The Subscriber represents and warrants further hereby acknowledges that (a) it has such knowledge been furnished with, (i) the Confidential Memorandum Supplement containing additional information relating to the Company, including risk factors (the "Confidential Memorandum"). This Agreement and experience in financial the Confidential Memorandum are collectively referred to herein as the "Offering Documents." The Subscriber has carefully reviewed the Offering Documents and business matters that it is capable of evaluating familiar with and understands the merits and risks terms of the acquisition of Offering, including the Shares; (b) it rights to which the Subscriber is able to bear entitled under this Agreement. The Subscriber specifically acknowledges and is familiar with the economic risks of an investment Risk Factors set forth in the Shares, including, without limitation, the risk of the loss of part or all of its investment and the inability to sell or transfer the Shares for an indefinite period of time; (c) it has adequate financial means of providing for current needs and contingencies and has no need for liquidity in its investment in the Shares; and (d) it does not have an overall commitment to investments which are not readily marketable that is excessive in proportion to its net worth and an investment in the Shares will not cause such overall commitment to become excessiveConfidential Memorandum.
2.4 The Subscriber further represents and warrants that the Subscriber has reviewed the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 2000 (the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made been furnished by the Company during the course of this transaction with all information regarding the Securities and Exchange Commission (Company which the "SEC") since the filing of the 2000 Form 10-KSBSubscriber, as well as its investment advisor, attorney and/or accountant, has requested or desired to know, and has been afforded the opportunity to obtain such information regarding ask questions of and receive answers from duly authorized officers or other representatives of the Company as it concerning the terms and conditions of the Offering, and has reasonably requested to evaluate the merits and risks of its investment in the Shares. No oral or written representations have been made or oral received any additional information furnished to which the Subscriber or its advisers in connection with has requested concerning the investment in terms and conditions of the SharesOffering and the Company.
2.5 The Subscriber represents has relied solely upon the Offering Documents provided by the Company in making the Subscriber's decision to invest in the Special Warrants and warrants that has not relied upon any other representation or other information (whether oral or written) from the Shares are being acquiredCompany, or any agent, employee or affiliate of the Company or any other third party other than as set forth in the Offering, and will be held, pursuant to Regulation S ("Regulation S") promulgated under the Securities Act. The certificate representing the Shares is not to be delivered within the United States. The Subscriber is neither a "U.S. person" (as such term is defined in Regulation S) nor is acquiring the Shares for the account or benefit results of a "U.S. person"Subscriber's own independent investigation. The Subscriber acknowledges and agrees that Rule 902(o) of Regulation S defines a "U.S. person" generally as (a) a natural person resident in it shall not be entitled to seek any remedies with respect to the United States; (b) a partnership or corporation organized or incorporated under the laws of the United States; (c) an estate of which offering from any executor or administrator is a U.S. person; (d) a trust of which any trustee is a U.S. person; (e) an agency or branch of a foreign entity located in the United States; (f) a non-discretionary account or similar account (party other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individual) resident in the United States; and (h) a partnership or corporation if (I) organized or incorporated under the laws of any foreign jurisdiction; and (II) formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) of Regulation D under the Securities Act) who are not natural persons, estates or trusts. The Subscriber agrees that the Shares may not be offered or sold in the United States or to "U.S. persons" unless registered under the Securities Act or an exemption therefrom is available and that hedging transactions involving the Company's securities may not be conducted unless in compliance with the Securities Act.
2.6 The Subscriber acknowledges represents that counsel no Special Warrants were offered or sold to it by means of any form of general solicitation or general advertising, and in connection therewith the Subscriber did not: (A) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio whether closed circuit, or generally available; or (B) attend any seminar meeting or industry investor conference whose attendees were invited by any general solicitation or general advertising.
2.7 The Subscriber understands that the Special Warrants have not been registered under the Act by reason of a claimed exemption under the provisions of the Act which depends, in part, upon the Subscriber's investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing the Special Warrants for the Subscriber's own account for investment purposes only and not with a view toward the resale or distribution to others and has no contract, undertaking, agreement or other arrangement, in existence or contemplated, to sell, pledge, assign or otherwise transfer the Special Warrants to any other Person.
2.8 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Special Warrants, Shares and Warrants substantially as set forth below, that such Special Warrants, Shares and Warrants have not been registered under the Act or any state securities or "blue sky" laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the restrictions on the transferability of the Shares. THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE 1S IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
2.9 The Subscriber agrees to supply the Company, within five (5) days after the Subscriber receives the request therefore from the Company, with such additional information concerning the Subscriber as the Company deems necessary or advisable.
2.10 The Subscriber understands, acknowledges and agrees with the Company that the Offering is intended to be relyingexempt from registration under the Act by virtue of Section 4(2) of the Act and the provisions of Regulation D thereunder, and may rely, which is in part dependent upon the foregoing in connection with any opinion of counsel given with regard to the issuance truth, completeness and accuracy of the Shares to the Subscriber and any subsequent transfer of the Shares statements made by the Subscriber and agrees to advise Subscriber will hold the Company harmless from all liability, damages, costs and its counsel in writing expenses resulting from any breach thereof.
2.11 The Subscriber acknowledges that the information contained in the event of any change Offering Documents or otherwise made available to the Subscriber is confidential and non-public and agrees that all such information shall be kept in any of confidence by the foregoing.
2.7 The address set forth below is Subscriber and neither be used by the Subscriber for the Subscriber's true personal benefit (other than in connection with this Subscription) nor disclosed to any third party for any reason, notwithstanding that the Subscriber's Subscription may not be accepted by the Company.
2.12 The Company is under no obligation to, and correct mailing addressthere can be no assurance that, the Company will receive or accept subscriptions for the aggregate number of Special Warrants that may be sold by the Company pursuant to the Offering.
Appears in 1 contract
REPRESENTATIONS BY SUBSCRIBER. The Subscriber understands and agrees that the Company is relying and may rely upon the following representations and warranties made by the Subscriber in entering into this Agreement:
2.1 The Subscriber recognizes that the acquisition of the Common Shares and the Warrants involves a high degree of risk and is suitable only for a subscriber persons of adequate financial means that has who have no need for liquidity in this investment in that (i) it he may not be able to liquidate its his investment in the event of emergency; (ii) transferability is extremely limited; and (iii) it he could sustain a complete loss of its his investment.
2.2 The Subscriber represents that he (i) is competent to understand and warrants does understand the nature of this investment; and (ii) is able to bear the economic risk of this investment.
2.3 The Subscriber represents that the Shares are being acquired for its own account, for investment purposes and not with a view to any distribution within the meaning he 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 1933 Act"), as a result of application to him of the criteria set forth on Exhibit A attached hereto (please indicate on such Exhibit A by a checkmark the one or more criteria which apply).
2.4 The Subscriber acknowledges that he has significant prior investment experience, including investment in restricted securities, and that he has read all of the documents furnished or made available by the Company to him to evaluate the merits and risks of such an investment on his behalf.
2.5 The Subscriber hereby represents that he has been furnished by the Company with the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 1999 and Quarterly Report on Form 10-QSB for the fiscal quarter ended January 31, 2000 and all other information regarding the Company which he had requested or desired to know; that all documents which could be reasonably provided have been made available for his inspection and review; that he has been afforded the opportunity to ask questions of and receive answers from duly authorized representatives of the Company concerning the terms and conditions of the offering, and any additional information which he had requested; and that he has had the opportunity to consult with his own tax or financial advisor concerning an investment in the Company.
2.6 The Subscriber hereby acknowledges that this offering of Common Shares and Warrants has not been reviewed by the Securities and Exchange Commission (the "SEC") because of the Company's representations that this is intended to be a non-public offering pursuant to Section 4(2) of the 1933 Act and Rule 506 of Regulation D promulgated thereunder. The Subscriber represents that the Common Shares and Warrants are being acquired for his own account, for investment and not for distribution or resale to others. The Subscriber agrees that he will not sell, assign, mortgage, pledge, hypothecate, transfer or otherwise dispose of the Common Shares and/or Warrants, or any of the Shares portion thereof, unless (a) a registration statement they are registered under the Securities 1933 Act with respect thereto or unless an exemption from such registration is in effect and the prospectus included therein meets the requirements of Section 10 of the Securities Act, or (b) the Company has received a written opinion of its counsel that, after an investigation of the relevant facts, such counsel is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer or disposition does not require registration under the Securities Act. available.
2.7 The Subscriber consents that the Company may, if it he desires, permit the transfer of the Common Shares and/or Warrants by the Subscriber out of its his name only when its his request for transfer is accompanied by an opinion of counsel satisfactory to the Company that neither the sale nor the proposed transfer does not result results in a violation of the 1933 Act or any applicable state "blue sky" laws (collectively, "Securities ActLaws"). The Subscriber agrees to be bound by any requirements of the such Securities ActLaws. The Subscriber agrees to hold the Company and its controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any sale or distribution by the undersigned Subscriber in violation of any securities laws Securities Laws or any misrepresentation herein.
2.3 2.8 The Subscriber represents acknowledges and warrants further agrees that (a) it has such knowledge and experience the Company is relying on the Subscriber's representations contained in financial and business matters that it is capable of evaluating the merits and risks of the acquisition of the Shares; (b) it is able this Agreement in determining whether to bear the economic risks of an investment in the Shares, including, without limitation, the risk of the loss of part or all of its investment and the inability to sell or transfer the Shares for an indefinite period of time; (c) it has adequate financial means of providing for current needs and contingencies and has no need for liquidity in its investment in the Shares; and (d) it does not have an overall commitment to investments which are not readily marketable that is excessive in proportion to its net worth and an investment in the Shares will not cause such overall commitment to become excessiveaccept this subscription.
2.4 2.9 The Subscriber has reviewed the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 2000 (the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made by the Company with the Securities and Exchange Commission (the "SEC") since the filing of the 2000 Form 10-KSB, and has been afforded the opportunity to obtain such information regarding the Company as it has reasonably requested to evaluate the merits and risks of its investment in the Shares. No oral or written representations have been made or oral information furnished consents to the Subscriber or its advisers in connection with placement of a legend on the investment in certificates evidencing the Shares.
2.5 The Subscriber represents Common Shares and warrants Warrants stating that the Shares are being acquired, and will be held, pursuant to Regulation S ("Regulation S") promulgated they have not been registered under the Securities Act. The certificate representing Act and setting forth or referring to the Shares is not to be delivered within the United Statesrestrictions on transferability and sale thereof. The Subscriber is neither a "U.S. person" (as such term is defined in Regulation S) nor is acquiring the Shares for the account or benefit of a "U.S. person". The Subscriber acknowledges aware that Rule 902(o) of Regulation S defines a "U.S. person" generally as (a) a natural person resident in the United States; (b) a partnership or corporation organized or incorporated under the laws of the United States; (c) an estate of which any executor or administrator is a U.S. person; (d) a trust of which any trustee is a U.S. person; (e) an agency or branch of a foreign entity located in the United States; (f) a non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individual) resident in the United States; and (h) a partnership or corporation if (I) organized or incorporated under the laws of any foreign jurisdiction; and (II) formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) of Regulation D under the Securities Act) who are not natural persons, estates or trusts. The Subscriber agrees that the Shares may not be offered or sold in the United States or to "U.S. persons" unless registered under the Securities Act or an exemption therefrom is available and that hedging transactions involving the Company's securities may not be conducted unless in compliance with the Securities Act.
2.6 The Subscriber acknowledges that counsel to the Company will be relying, and may rely, upon the foregoing make a notation in connection its appropriate records with any opinion of counsel given with regard respect to the issuance restrictions on the transferability of the Common Shares to the Subscriber and any subsequent transfer of the Shares by the Subscriber and agrees to advise the Company and its counsel in writing in the event of any change in any of the foregoingWarrants.
2.7 2.10 The address set forth below is the SubscriberSubscribers's true and correct mailing addressresidence.
2.11 The information provided by the Subscriber herein in connection with this investment is accurate and complete as of the date of the execution of this Subscription Agreement.
Appears in 1 contract
Samples: Subscription Agreement (Navtech Inc)
REPRESENTATIONS BY SUBSCRIBER. The Subscriber understands and agrees that the Company is relying and may rely upon the following representations and warranties made by the Subscriber in entering into this Agreement:
2.1 The Subscriber recognizes that the acquisition of the Shares involves a high degree of risk and is suitable only for a subscriber of adequate financial means that has no need for liquidity in this investment in that (i) it may not be able to liquidate its investment in the event of emergency; (ii) transferability is extremely limited; and (iii) it could sustain a complete loss of its investment.
2.2 The Subscriber represents and warrants that to the Shares are being acquired Corporation as follows:
(a) He is making the loan and acquiring the Convertible Note for its his own accountaccount as principal, for investment purposes and not with a view to any distribution within resale or distribution. Immediately prior to making the meaning loan and receiving the Convertible Note and on conversion of the Convertible Note to Units:
(i) he is an "accredited investor" as that term is defined in Rule 501(a) under the Securities Act of 1933, as amended (the "Securities Act"). The Subscriber will not sell, assign, mortgage, pledge, hypothecate, transfer or otherwise dispose of any of the Shares unless (a) a registration statement under the Securities Act with respect thereto is in effect and the prospectus included therein meets the requirements of Section 10 of the Securities Act, or (b) the Company has received a written opinion of its counsel that, after an investigation of the relevant facts, such counsel is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer or disposition does not require registration under the Securities Act. The Subscriber consents that the Company may, if it desires, permit the transfer of the Shares by the Subscriber out of its name only when its request for transfer is accompanied by an opinion of counsel satisfactory to the Company that the proposed transfer does not result in a violation of the Securities Act. The Subscriber agrees to be bound by any requirements of the Securities Act. The Subscriber agrees to hold the Company and its controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any sale or distribution by the Subscriber in violation of any securities laws or any misrepresentation herein.
2.3 The Subscriber represents and warrants further that (a) it he has such knowledge and experience in financial and business matters that it he is capable of evaluating the merits and risks of involved in making the acquisition of loan and purchasing the SharesUnits; and
(bii) it he is able to bear the economic risks risk of an investment in making the Sharesloan and purchasing the Units upon conversion (i.e., includingat the time of making the loan under the Convertible Note he could afford a complete loss without having his standard of living materially affected thereby).
(b) He has been informed as to, without limitationand is familiar with, the risk business activities of the loss Corporation, and has had an opportunity and proceeded, or waived the opportunity, to review the books and records of part or all the Corporation and to ask questions of, and receive answers from, appropriate representatives of its investment the Corporation concerning the Corporation and the inability to sell or transfer the Shares for an indefinite period terms and conditions of time; this Agreement, that he deems necessary.
(c) it has adequate financial means He acknowledges receipt of providing for current needs the Corporation's draft Registration Statement dated March 12, 2004 and contingencies and has no need for liquidity in its investment in the Shares; and (d) it does not have an overall commitment to investments which are not readily marketable that is excessive in proportion to its net worth and an investment in the Shares will not cause such overall commitment to become excessive.
2.4 The Subscriber has reviewed the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 2000 (the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made by the Company filed with the Securities and Exchange Commission (the "SEC") since the filing which is provided for informational purposes only and which is subject to change. He acknowledges that no offer or sale of the 2000 Form 10-KSB, and has been afforded the opportunity to obtain such information regarding the Company as it has reasonably requested to evaluate the merits and risks of its investment in the Shares. No oral or written representations have been securities is made or oral information furnished pursuant to the Subscriber or its advisers in connection with the investment in the Shares.
2.5 The Subscriber represents draft Registration Statement and warrants that the Shares are being acquired, and will be held, pursuant SEC has provided substantial comments to Regulation S ("Regulation S") promulgated the Corporation on the current draft registration statement. He fully understands that this offering has not been registered under the Securities Act. The certificate representing Act and is a private placement, in reliance upon exemptions under the Shares Securities Act pursuant to Rule 506 of regulation D, accordingly, to the extent that he is not to be delivered within supplied with the United States. The Subscriber is neither a "U.S. person" (as such term is defined information which would have been contained in Regulation S) nor is acquiring the Shares for the account or benefit of a "U.S. person". The Subscriber acknowledges that Rule 902(o) of Regulation S defines a "U.S. person" generally as (a) a natural person resident in the United States; (b) a partnership or corporation organized or incorporated under the laws of the United States; (c) an estate of which any executor or administrator is a U.S. person; (d) a trust of which any trustee is a U.S. person; (e) an agency or branch of a foreign entity located in the United States; (f) a non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organizedeffective registration statement, incorporated or (if an individual) resident in the United States; and (h) a partnership or corporation if (I) organized or incorporated under the laws of any foreign jurisdiction; and (II) formed by a U.S. person principally for the purpose of investing in securities not registered filed under the Securities Act, unless it is organized or incorporatedhe must rely on his own access to such information.
(d) He has had an opportunity to obtain and has obtained a general and complete understanding satisfactory to him of the Corporation, its operations, finances, and ownedmanner of doing business sufficient to permit him to evaluate (i) the Corporation and its prospects and (ii) the risks and merits of making the loan pursuant to the Convertible Note.
(e) He (i) recognizes that making the loan pursuant to the Convertible Note involves risk, by accredited investors (ii) has carefully considered whether making the loan pursuant to the Convertible Note is appropriate for him, and (iii) has obtained such individual financial, tax and legal advice as defined he deems necessary or appropriate to fully understand the risks involved and to evaluate a loan and investment in Rule 501(athe Corporation.
(f) He recognizes that he must bear the economic risk involved in making the loan pursuant to the Convertible Note for an indefinite period of Regulation D time because, among other reasons, the common shares forming part of the Units and the common shares issued in exercise of the Warrants and the Warrants themselves have not been registered under the Securities Act) who are not natural persons, estates or trusts. The Subscriber agrees that the Shares may Act and therefore cannot be offered sold, pledged, assigned or sold in the United States or to "U.S. persons" otherwise disposed of unless (i) they are subsequently registered under the Securities Act or (ii) an exemption therefrom from such registration is available and an opinion of counsel acceptable to the Corporation that hedging transactions involving the Companytransfer is not in violation of any federal securities act or state securities law is provided to the Corporation. The Corporation has no obligation to register the common shares or the Warrants purchased upon conversion of the Convertible Note.
(g) All information which he has provided to the Corporation, whether provided by him directly or indirectly, concerning himself, his financial position, and his knowledge of financial and business matters is correct and complete as of the date of this Agreement. He will notify the Corporation immediately if, subsequent to the date of this Agreement, there is any material change in any information provided to the Corporation by him.
(h) He recognizes that no federal or state agency has passed upon the offering of the Convertible Notes or the Units to him or to any other person or made any finding or determination regarding the fairness of such offering.
(i) He understands that neither the Corporation nor any associates or affiliates thereof are guaranteeing the success of or any return from the Corporation.
(j) He recognizes that there is no current market for the Corporation's securities common stock; that there can be no assurances that such a market will exist any time in the future and accordingly he may not be conducted unless able to sell or dispose of any of the common shares received on the conversion of the Convertible Note or exercise of the Warrants even if he had held them for a number of years; that his right to transfer the common shares will be restricted by federal and state securities laws and a legend to this effect will be placed on the certificates representing the common shares; that such laws impose strict limitations upon such transfer; and that the Corporation is under no obligation to register his common shares in compliance connection with the Securities Actsubsequent transfer thereof by him or to aid him in obtaining an exemption from such registration.
2.6 The Subscriber acknowledges that counsel to (l) He will cooperate with the Company will be relying, and may rely, upon the foregoing Corporation in connection with any opinion of counsel given with regard to filing requirements under the issuance of the Shares to the Subscriber Securities Act and any subsequent transfer of the Shares by the Subscriber and agrees to advise the Company and its counsel in writing in the event of any change in any of the foregoingwill provide such information or documentation as may be required.
2.7 The address set forth below is the Subscriber's true and correct mailing address.
Appears in 1 contract
Samples: Loan and Subscription Agreement (Yukon Gold Corp Inc)
REPRESENTATIONS BY SUBSCRIBER. The Subscriber understands and agrees that In addition to the Company is relying and may rely upon the following representations and warranties made by the Subscriber set forth in entering into Article V and elsewhere in this Agreement, the Subscriber, represents, warrants and acknowledges to the Company that:
2.1 The Subscriber recognizes that that: (i) the acquisition purchase of the Shares Units involves a high degree of risk risk, is speculative and is suitable only for a subscriber investors who can afford the loss of adequate financial means that has no need for liquidity their entire investment should consider investing in this investment in that the Company and/or the Units; (iii) it the Subscriber may not be able to liquidate its investment investment; (iii) transferability of the Shares is extremely limited; and, (iv) in the event of emergency; (ii) transferability is extremely limited; and (iii) it a disposition of the Shares, the Subscriber could sustain a complete the loss of its entire investment.
2.2 The Subscriber represents and warrants that the Shares are being acquired for its own account, for investment purposes and not with a view to any distribution within the meaning of the Securities Act of 1933Subscriber is an "accredited investor", as amended (the "Securities Act"). The Subscriber will not sell, assign, mortgage, pledge, hypothecate, transfer or otherwise dispose of any of the Shares unless (a) a registration statement under the Securities Act with respect thereto is in effect and the prospectus included therein meets the requirements of Section 10 of the Securities Act, or (b) the Company has received a written opinion of its counsel that, after an investigation of the relevant facts, such counsel is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer or disposition does not require registration under the Securities Act. The Subscriber consents that the Company may, if it desires, permit the transfer of the Shares indicated by the Subscriber out of its name only when its request for transfer is accompanied by an opinion of counsel satisfactory Subscriber's responses to the Company that the proposed transfer does not result questions contained in a violation of the Securities Act. The Subscriber agrees to be bound by any requirements of the Securities Act. The Subscriber agrees to hold the Company and its controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any sale or distribution by the Subscriber in violation of any securities laws or any misrepresentation herein.Article V.
2.3 The Subscriber represents and warrants further hereby acknowledges that (a) it has such knowledge been furnished with, (i) the Confidential Memorandum Supplement containing additional information relating to the Company, including risk factors (the "Confidential Memorandum"). This Agreement and experience in financial the Confidential Memorandum are collectively referred to herein as the "Offering Documents." The Subscriber has carefully reviewed the Offering Documents and business matters that it is capable of evaluating familiar with and understands the merits and risks terms of the acquisition of Offering, including the Shares; (b) it rights to which the Subscriber is able to bear entitled under this Agreement. The Subscriber specifically acknowledges and is familiar with the economic risks of an investment Risk Factors set forth in the Shares, including, without limitation, the risk of the loss of part or all of its investment and the inability to sell or transfer the Shares for an indefinite period of time; (c) it has adequate financial means of providing for current needs and contingencies and has no need for liquidity in its investment in the Shares; and (d) it does not have an overall commitment to investments which are not readily marketable that is excessive in proportion to its net worth and an investment in the Shares will not cause such overall commitment to become excessiveConfidential Memorandum.
2.4 The Subscriber further represents and warrants that the Subscriber has reviewed the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 2000 (the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made been furnished by the Company during the course of this transaction with all information regarding the Securities and Exchange Commission (Company which the "SEC") since the filing of the 2000 Form 10-KSBSubscriber, as well as its investment advisor, attorney and/or accountant, has requested or desired to know, and has been afforded the opportunity Opportunity to obtain such information regarding ask questions of and receive answers from duly authorized officers or other representatives of the Company as it concerning the terms and conditions of the Offering, and has reasonably requested to evaluate the merits and risks of its investment in the Shares. No oral or written representations have been made or oral received any additional information furnished to which the Subscriber or its advisers in connection with has requested concerning the investment in terms and conditions of the SharesOffering and the Company.
2.5 The Subscriber represents has relied solely upon the information provided by the Company in making the Subscriber's decision to invest in the Units and warrants that has not relied upon any other representation or other information (whether oral or written) from the Shares are being acquiredCompany, or any agent, employee or affiliate of the Company or any other third party other than as set forth in the Offering, and will be held, pursuant to Regulation S ("Regulation S") promulgated under the Securities Act. The certificate representing the Shares is not to be delivered within the United States. The Subscriber is neither a "U.S. person" (as such term is defined in Regulation S) nor is acquiring the Shares for the account or benefit results of a "U.S. person". The Subscriber acknowledges that Rule 902(o) of Regulation S defines a "U.S. person" generally as (a) a natural person resident in the United States; (b) a partnership or corporation organized or incorporated under the laws of the United States; (c) an estate of which any executor or administrator is a U.S. person; (d) a trust of which any trustee is a U.S. person; (e) an agency or branch of a foreign entity located in the United States; (f) a non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individual) resident in the United States; and (h) a partnership or corporation if (I) organized or incorporated under the laws of any foreign jurisdiction; and (II) formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) of Regulation D under the Securities Act) who are not natural persons, estates or trusts. The Subscriber agrees that the Shares may not be offered or sold in the United States or to "U.S. persons" unless registered under the Securities Act or an exemption therefrom is available and that hedging transactions involving the CompanySubscriber's securities may not be conducted unless in compliance with the Securities Actown independent investigation.
2.6 The Subscriber acknowledges represents that counsel no Units were offered or sold to it by means of any form of general solicitation or general advertising, and in connection therewith the Subscriber did not: (A) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio whether closed circuit, or generally available; or (B) attend any seminar meeting or industry investor conference whose attendees were invited by any general solicitation or general advertising.
2.7 The Subscriber understands that the Units have not been registered under the Act by reason of a claimed exemption under the provisions of the Act which depends, in part, upon the Subscriber's investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing the Units for the Subscriber's own account for investment purposes only and not o with a view toward the resale or distribution to others and has no contract, undertaking, agreement or other arrangement, in existence or contemplated, to sell, pledge, assign or otherwise transfer the Units to any other person.
2.8 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Shares substantially as set forth below, that such Shares have not been registered under the Act or any state securities or "blue sky" laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. The Subscriber is aware that the Company will make a notation in o its appropriate records with respect to the restrictions on the transferability of the Shares. THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
2.9 The Subscriber agrees to supply the Company, within five business (5) days after the Subscriber receives the request therefore from the Company, with such additional information concerning the Subscriber as the Company deems necessary or advisable.
2.10 The Subscriber understands, acknowledges and agrees with the Company that the Offering is intended to be relyingexempt from registration under the Act by virtue of Section4(2) of the Act and the provisions of Regulation D thereunder, and may rely, which is in part dependent upon the foregoing in connection with any opinion of counsel given with regard to the issuance truth, completeness and accuracy of the Shares to the Subscriber and any subsequent transfer of the Shares statements made by the Subscriber and agrees to advise Subscriber will hold the Company harmless from all liability, damages, costs and its counsel in writing expenses resulting from any breach thereof..
2.11 The Subscriber acknowledges that the information contained in the event of any change Offering Documents or otherwise made available to the Subscriber is confidential and non-public and agrees that all such information shall be kept in any of confidence by the foregoing.
2.7 The address set forth below is Subscriber and neither be used by the Subscriber for the Subscriber's true personal benefit (other than in connection with this Subscription) nor disclosed to any third party for any reason, notwithstanding that the Subscriber's Subscription may not be accepted by the Company. The Company acknowledges that any information provided to Subscriber that is material non-public will be disclosed in any registration statement covering the securities issued pursuant to this Agreement and correct mailing addressin any event no later that one year from the date of this Agreement.
2.12 The Company is under no obligation to, and there can be no assurance that, the Company will receive or accept subscriptions for the aggregate number of Units that may be sold by the Company pursuant to the Offering.
Appears in 1 contract
REPRESENTATIONS BY SUBSCRIBER. The Subscriber understands and agrees that the Company is relying and may rely upon the following representations and warranties made by the Subscriber in entering into this Agreement:
2.1 The Subscriber recognizes that the acquisition of the Shares involves a high degree of risk and is suitable only for a subscriber of adequate financial means that has no need for liquidity in this investment in that (i) it may not be able to liquidate its investment in the event of emergency; (ii) transferability is extremely limited; and (iii) it could sustain a complete loss of its investment.
2.2 The Subscriber represents and warrants that to the Shares are being acquired Corporation as follows:
a. He is acquiring the Units for its his own accountaccount as principal, for investment purposes and not with a view to any distribution within resale or distribution. Immediately prior to purchasing the meaning of Units:
i. he is an “accredited investor” as that term is defined in Rule 501(a) under the Securities Act of 1933, as amended (the "“Securities Act"). The Subscriber will not sell, assign, mortgage, pledge, hypothecate, transfer ”) or otherwise dispose of any of the Shares unless (a) if a registration statement Canadian citizen under the Securities Act with respect thereto is in effect and the prospectus included therein meets the requirements of Section 10 of the Securities Act, National Policy 45-106 or (b) the Company has received a written opinion of its counsel that, after an investigation of the relevant facts, such counsel is of the opinion that such proposed sale, assignment, mortgage, pledge, hypothecation, transfer or disposition does not require registration under the Securities Act. The Subscriber consents that the Company may, if it desires, permit the transfer of the Shares by the Subscriber out of its name only when its request for transfer is accompanied by an opinion of counsel satisfactory to the Company that the proposed transfer does not result in a violation of the Securities Act. The Subscriber agrees to be bound by any requirements of the Securities Act. The Subscriber agrees to hold the Company and its controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any sale or distribution by the Subscriber in violation of any securities laws or any misrepresentation herein.
2.3 The Subscriber represents and warrants further that (a) it he has such knowledge and experience in financial and business matters that it he is capable of evaluating the merits and risks of involved in purchasing the acquisition of the SharesUnits; (b) it and
ii. he is able to bear the economic risk of purchasing the Units (i.e., at the time of purchasing the Units he could afford a complete loss without having his standard of living materially affected thereby).
b. He has been informed as to, and is familiar with, the business activities of the Corporation and its affiliates, and has had an opportunity and proceeded, or waived the opportunity, to (i) review the books and records of the Corporation and its affiliates and to ask questions of, and receive answers from, appropriate representatives of the Corporation and its affiliates concerning the Corporation and its affiliates and the terms and conditions of this Agreement, and (ii) obtain and review all additional information relating to the history and proposed business plan of the Corporation and its affiliates that he deems necessary.
c. He fully understands that this offering has not been registered under the Securities Act in reliance upon exemptions therefrom, and, accordingly, to the extent that he is not supplied with the information which would have been contained in a registration statement filed under the Securities Act, he must rely on his own access to such information.
d. He has had an opportunity to obtain and has obtained a general and complete understanding satisfactory to him of the Corporation, its affiliates and their services, potential assets, finances, and manner of doing business sufficient to permit him to evaluate (i) the Corporation and its prospects and (ii) the risks and merits of purchasing the Units.
e. He (i) recognizes that purchasing the Units involves risk, (ii) has carefully considered whether purchasing the Units is appropriate for him, and (iii) has obtained such individual financial, tax and legal advice as he deems necessary or appropriate to fully understand the risks involved and to evaluate an investment in the Shares, including, without limitation, Units.
f. He recognizes that he must bear the economic risk of involved in purchasing the loss of part or all of its investment and the inability to sell or transfer the Shares Units for an indefinite period of timetime because, among other reasons, the Units or the underlying Shares or Warrant Shares have not been registered under the Securities Act and therefore cannot be sold, pledged, assigned or otherwise disposed of unless (i) they are subsequently registered under the Securities Act or (ii) an exemption from such registration is available and an opinion of counsel acceptable to the Corporation that the transfer is not in violation of any federal securities act or state securities law is provided to the Corporation.
g. All information which he has provided to the Corporation, whether provided by him directly or indirectly, concerning himself, his financial position and his knowledge of financial and business matters is correct and complete as of the date of this Agreement. He will notify the Corporation immediately if, prior to the date of this Agreement, there is any material change in any information provided to the Corporation by him.
h. He recognizes that no federal or state agency has passed upon the offering of the Units to him or to any other person or made any finding or determination regarding the fairness of such offering.
i. He understands that neither the Corporation nor any associates or affiliates thereof are guaranteeing the success of or any return from the Corporation.
j. He recognizes that there is no current market for the Units, the Shares or the Warrant Shares; (c) it has adequate financial means of providing for current needs and contingencies and has that there can be no need for liquidity in its investment assurances that such a market will exist any time in the Sharesfuture and accordingly he may not be able to sell or dispose of any of the Units, the Shares or the Warrant Shares even if he had held them for a number of years; that his right to transfer the Shares or Warrant Shares will be restricted by federal and state securities laws and a legend to this effect will be placed on the certificates representing the Shares and Warrant Shares if they are issued prior to being registered; that such laws impose strict limitations upon such transfer; and (d) it does not have an overall commitment although the Corporation is undertaking to investments which are not readily marketable file a registration statement as set out herein there is no guarantee that said registration statement will become effective and the Corporation, other than its undertaking, is excessive in proportion to its net worth and an investment in the Shares will not cause such overall commitment to become excessive.
2.4 The Subscriber has reviewed the Company's Annual Report on Form 10-KSB for the fiscal year ended October 31, 2000 (the "2000 Form 10-KSB"), Quarterly Report on Form 10-QSB for the fiscal period ended January 31, 2001, any and all other filings made by the Company with the Securities and Exchange Commission (the "SEC") since the filing of the 2000 Form 10-KSB, and has been afforded the opportunity to obtain such information regarding the Company as it has reasonably requested to evaluate the merits and risks of its investment in the Shares. No oral or written representations have been made or oral information furnished to the Subscriber or its advisers under no obligation in connection with the investment subsequent transfer thereof by him or to aid him in obtaining an exemption from such registration.
k. If the subscriber is not a U.S. person and the Shares or Warrant Shares are being offered outside the United States, the following representations and warranties of the Subscriber, among other things, pertain to U.S. securities laws and the sale or transfer in the United States of the Shares or Warrant Shares.
2.5 . The Subscriber represents and warrants to the Corporation as follows: The Subscriber understands that prior to the registration of the Shares are being acquiredor Warrant Shares in the U.S., and will such securities may not be heldoffered or sold, pursuant directly or indirectly, in the United States to or, or for the account or benefit of, a “U.S. Person” (as defined in Rule 902 of Regulation S ("Regulation S") promulgated under the Securities Act. The certificate representing the Shares ), which definition includes, but is not to be delivered within the United States. The Subscriber is neither a "U.S. person" limited to: (as such term is defined in Regulation S1) nor is acquiring the Shares for the account or benefit of a "U.S. person". The Subscriber acknowledges that Rule 902(o) of Regulation S defines a "U.S. person" generally as (a) a any natural person resident in the United States; , (b2) a any partnership or corporation organized or incorporated under the laws of the United States; , (c3) an any estate or trust of which any the executor or administrator or trustee, respectively, is a U.S. person; , (d4) a trust of which any trustee is a U.S. person; (e) an agency discretionary or branch of a foreign entity located in the United States; (f) a non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person; (g) a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individual) resident in the United States; person and (h) a any partnership or corporation if (I) company organized or incorporated under the laws of any a foreign jurisdiction; and (II) formed jurisdiction by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by accredited investors Act (as defined in Rule 501(aa “U.S. Person”) of Regulation D until registered under the Securities Act) who are not natural persons, estates Act and the securities laws of all applicable states or trustsunless an exemption from such registration requirements is available. The Subscriber agrees not to engage in any hedging transaction involving of the Shares or Warrant Shares. The Subscriber understands that the Corporation may implement procedures to ensure that the Shares or Warrant Shares may not be offered or sold in delivered within the United States or other than in offerings deemed to "U.S. persons" unless registered meet the definition of an “offshore transaction” pursuant to Rule 902(h) of Regulation S promulgated under the Securities Act or an exemption therefrom from registration under the Securities Act is available available. If the Shares or Warrant Shares are certificated prior to registration and that hedging transactions involving the Company's shareholder is a non-U.S. person, a restrictive legend in substantially the following form shall be placed on each such certificate evidencing any of the Shares and Warrant Shares: The shares represented by this Certificate have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”) or under any applicable state securities laws (the “State Laws”). The shares have been acquired for investment purposes and may not be conducted unless sold, transferred, pledged or otherwise disposed of except in compliance with the registration requirements of the Securities Act and applicable State Laws, or pursuant to applicable exemptions from such registration requirements which may include sale through a Designated Offshore Securities Market. Further, unless the shares represented by this Certificate have been registered under the Securities Act.
2.6 The Subscriber acknowledges that counsel to , the Company will be relyingsale, transfer, pledge or other disposition of these shares in the United States is prohibited except in accordance with the provisions of Regulation S (Rule 901 through 905 and may rely, upon the foregoing in connection with any opinion of counsel given with regard to Preliminary Notes) promulgated under the issuance of the Shares to the Subscriber and any subsequent Securities Act. Any transfer of the Shares by or Warrant Shares on the books and records of the Corporation will only be affected in accordance with such legend.
l. If the Subscriber is a non-U.S. citizen, the Subscriber undertakes and agrees to advise that it will not offer or sell the Company and its counsel in writing Shares or Warrant Shares in the event United States unless such Shares or Warrant Shares are registered under the U.S. Securities Act and the securities laws of any change all applicable states of the United States or an exemption from such registration requirements is available, and further that it will not resell the Securities in any jurisdiction, except in accordance with the provisions of the foregoingapplicable securities legislation, regulations, rules, policies and orders and stock exchange rules.
2.7 The address set forth below is the Subscriber's true and correct mailing address.
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