Representations of Holder. In connection with the acquisition of the Shares hereunder, Holder represents and warrants to the Company that the statements contained in this paragraph 2 are true, accurate, correct and complete in all material respects. (a) The Shares to be acquired by Holder pursuant to this Agreement will be acquired for Holder's own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act of 1933, as amended (the "Securities Act"), or any applicable state securities laws, and none of the Shares will be disposed of in contravention of the Securities Act or any applicable state securities laws. (b) Holder is an accredited investor, as such term is defined under Rule 501 of Regulation D promulgated under the Securities Act, and Holder is sophisticated and (i) able to fend for himself, (ii) able to evaluate the risks and benefits of the investment in the Shares and (iii) is familiar with, and has been afforded full access to the Company and its management and has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of Shares and such other information concerning the Company that Holder has requested and is required in Holder's judgment to make an informed decision to acquire the Shares. (c) Holder is able to bear the economic risk of Holder's investment in the Shares for an indefinite period of time because the Shares have not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act and any applicable state securities acts or an exemption from such registration is available. (d) Holder will not sell, assign or otherwise transfer the Shares subscribed for herein unless such sale, assignment or other transfer is made in compliance with the terms of that Shareholders' Agreement dated July 6, 1999, among the Company, Holder and certain other investors named therein, as amended by the First Amendment to Shareholders' Agreement dated as of May 31, 2000 (the "Shareholders' Agreement"). (e) Holder has full corporate or individual power, as applicable, and authority to execute and deliver this Agreement and to perform its, his or her obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of Holder, enforceable in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights 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 discretion of the court before which any proceeding therefor may be brought. The execution, delivery and performance of this Agreement and such other agreements by Holder does not and will not (A) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws or similar organizational documents of Holder, as applicable, (B) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Agency (as defined below) to which Holder is subject or (C) conflict with, violate or constitute a breach or default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or of any agreement, contract or instrument to which Holder is a party or result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, note, bond, mortgage, deed of trust, or other arrangement to which Holder is a party or by which he is bound or to which any of its, his or her assets is subject. Holder further represents and warrants that Holder is not now in breach of any such agreement, contract or instrument to which Holder is a party. Holder need not give any notice to, make any filing with, or obtain any authorization, consent or approval of any Governmental Authority in order to consummate the transactions contemplated hereby. (f) Holder has no liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated hereby for which the Company could become liable or obligated. (g) There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by, or, to the knowledge of Holder, threatened against him.
Appears in 1 contract
Samples: Subscription Agreement (Uti Corp)
Representations of Holder. In connection with the acquisition of the Shares hereunder, (a) The Holder represents and warrants to that it is acquiring the Company that Warrant and the statements contained in this paragraph 2 are true, accurate, correct and complete in all material respects.
(a) The Warrant Shares to be acquired by Holder pursuant to this Agreement will be acquired solely for Holder's own its account for investment and not with a view toto or for sale or distribution of said Warrant or Warrant Shares or any part thereof. The Holder also represents that the entire legal and beneficial interests of the Warrant and Warrant Shares the Holder is acquiring are being acquired for, or intention ofand will be held for, distribution thereof in violation of its account only.
(b) The Holder understands that the Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the "Securities “Act"”) on the basis that no distribution or public offering of the stock of the Company is to be effected. The Holder realizes that the basis for the exemption may not be present if, notwithstanding its representations, the Holder has a present intention of acquiring the securities for a fixed or determinable period in the future, selling (in connection with a distribution or otherwise), granting any participation in, or any applicable state securities laws, and none of otherwise distributing the Shares will be disposed of in contravention of the Securities Act or any applicable state securities laws.
(b) Holder is an accredited investor, as such term is defined under Rule 501 of Regulation D promulgated under the Securities Act, and Holder is sophisticated and (i) able to fend for himself, (ii) able to evaluate the risks and benefits of the investment in the Shares and (iii) is familiar with, and has been afforded full access to the Company and its management and has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of Shares and such other information concerning the Company that securities. The Holder has requested and is required in Holder's judgment to make an informed decision to acquire the Sharesno such present intention.
(c) The Holder is able to bear recognizes that the economic risk of Holder's investment in Warrant and the Warrant Shares for an indefinite period of time because the Shares have not been registered under the Securities Act and cannot must be sold held indefinitely unless they are subsequently registered under the Securities Act and any applicable state securities acts or an exemption from such registration is available. The Holder recognizes that the Company has no obligation to register the Warrant or the Warrant Shares, or to comply with any exemption from such registration.
(d) The Holder will not sellis aware that neither the Warrant nor the Warrant Shares may be sold pursuant to Rule 144 adopted under the Act unless certain conditions are met, assign or otherwise transfer the Shares subscribed for herein unless such sale, assignment or other transfer is made in compliance with the terms of that Shareholders' Agreement dated July 6, 1999including, among other things, the existence of a public market for the shares, the availability of certain current public information about the Company, Holder the resale following the required holding period under Rule 144 and certain other investors named therein, as amended by the First Amendment to Shareholders' Agreement dated as number of May 31, 2000 (the "Shareholders' Agreement")shares being sold during any three month period not exceeding specified limitations.
(e) The Holder has full corporate further agrees not to make any disposition of all or individual powerany part of the Warrant or Warrant Shares in any event unless and until the Holder shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and if reasonably requested by the Company, the Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, for the Holder to the effect that such disposition will not require registration of such Warrant or Exercise Shares under the Act or any applicable state securities laws. The Company agrees that it will not require an opinion of counsel with respect to transactions under Rule 144 of the Securities Act of 1933, as applicable, and authority to execute and deliver this Agreement and to perform its, his or her obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of Holder, enforceable in accordance with its termsamended, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights 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 discretion of the court before which any proceeding therefor may be brought. The execution, delivery and performance of this Agreement and such other agreements by Holder does not and will not (A) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws or similar organizational documents of Holder, as applicable, (B) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Agency (as defined below) to which Holder is subject or (C) conflict with, violate or constitute a breach or default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or of any agreement, contract or instrument to which Holder is a party or result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, note, bond, mortgage, deed of trust, or other arrangement to which Holder is a party or by which he is bound or to which any of its, his or her assets is subject. Holder further represents and warrants that Holder is not now in breach of any such agreement, contract or instrument to which Holder is a party. Holder need not give any notice to, make any filing with, or obtain any authorization, consent or approval of any Governmental Authority in order to consummate the transactions contemplated herebyunusual circumstances.
(f) The Holder has no liability or obligation understands and agrees that all certificates evidencing the Warrant Shares to pay any fees or commissions to any broker, finder or agent with respect be issued to the transactions contemplated hereby for which Holder may bear the Company could become liable or obligatedfollowing legend: THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
(g) There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by, or, to The Holder is an “accredited investor” as defined in Regulation D promulgated under the knowledge of Holder, threatened against himAct.
Appears in 1 contract
Samples: Warrant Agreement (DigiPath,Inc.)
Representations of Holder. In connection with the acquisition of the Shares hereunder, (a) The Holder represents and warrants to that it is acquiring the Company that Warrant and the statements contained in this paragraph 2 are true, accurate, correct and complete in all material respects.
(a) The Warrant Shares to be acquired by Holder pursuant to this Agreement will be acquired solely for Holder's own its account for investment and not with a view toto or for sale or distribution of said Warrant or Warrant Shares or any part thereof. The Holder also represents that the entire legal and beneficial interests of the Warrant and Warrant Shares the Holder is acquiring are being acquired for, or intention ofand will be held for, distribution thereof in violation of its account only.
(b) The Holder understands that the Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the "Securities “Act"”) on the basis that no distribution or public offering of the stock of the Company is to be effected. The Holder realizes that the basis for the exemption may not be present if, notwithstanding its representations, the Holder has a present intention of acquiring the securities for a fixed or determinable period in the future, selling (in connection with a distribution or otherwise), granting any participation in, or any applicable state securities laws, and none of otherwise distributing the Shares will be disposed of in contravention of the Securities Act or any applicable state securities laws.
(b) Holder is an accredited investor, as such term is defined under Rule 501 of Regulation D promulgated under the Securities Act, and Holder is sophisticated and (i) able to fend for himself, (ii) able to evaluate the risks and benefits of the investment in the Shares and (iii) is familiar with, and has been afforded full access to the Company and its management and has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of Shares and such other information concerning the Company that securities. The Holder has requested and is required in Holder's judgment to make an informed decision to acquire the Sharesno such present intention.
(c) The Holder is able to bear recognizes that the economic risk of Holder's investment in Warrant and the Warrant Shares for an indefinite period of time because the Shares have not been registered under the Securities Act and cannot must be sold held indefinitely unless they are subsequently registered under the Securities Act and any applicable state securities acts or an exemption from such registration is available. The Holder recognizes that the Company has no obligation to register the Warrant or the Warrant Shares, with the exception of certain registration rights set forth in Section 10 below, or to comply with any exemption from such registration.
(d) The Holder will not sellis aware that neither the Warrant nor the Warrant Shares may be sold pursuant to Rule 144 adopted under the Act unless certain conditions are met, assign or otherwise transfer the Shares subscribed for herein unless such sale, assignment or other transfer is made in compliance with the terms of that Shareholders' Agreement dated July 6, 1999including, among other things, the existence of a public market for the shares, the availability of certain current public information about the Company, Holder the resale following the required holding period under Rule 144 and certain other investors named therein, as amended by the First Amendment to Shareholders' Agreement dated as number of May 31, 2000 (the "Shareholders' Agreement")shares being sold during any three month period not exceeding specified limitations.
(e) The Holder has full corporate further agrees not to make any disposition of all or individual powerany part of the Warrant or Warrant Shares in any event unless and until the Holder shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and if reasonably requested by the Company, the Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, for the Holder to the effect that such disposition will not require registration of such Warrant or Exercise Shares under the Act or any applicable state securities laws. The Company agrees that it will not require an opinion of counsel with respect to transactions under Rule 144 of the Securities Act of 1933, as applicable, and authority to execute and deliver this Agreement and to perform its, his or her obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of Holder, enforceable in accordance with its termsamended, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights 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 discretion of the court before which any proceeding therefor may be brought. The execution, delivery and performance of this Agreement and such other agreements by Holder does not and will not (A) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws or similar organizational documents of Holder, as applicable, (B) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Agency (as defined below) to which Holder is subject or (C) conflict with, violate or constitute a breach or default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or of any agreement, contract or instrument to which Holder is a party or result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, note, bond, mortgage, deed of trust, or other arrangement to which Holder is a party or by which he is bound or to which any of its, his or her assets is subject. Holder further represents and warrants that Holder is not now in breach of any such agreement, contract or instrument to which Holder is a party. Holder need not give any notice to, make any filing with, or obtain any authorization, consent or approval of any Governmental Authority in order to consummate the transactions contemplated herebyunusual circumstances.
(f) The Holder has no liability or obligation understands and agrees that all certificates evidencing the Warrant Shares to pay any fees or commissions to any broker, finder or agent with respect be issued to the transactions contemplated hereby for which Holder may bear the Company could become liable or obligatedfollowing legend: THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
(g) There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by, or, to the knowledge of Holder, threatened against him.
Appears in 1 contract
Representations of Holder. In The Holder hereby represents and acknowledges to the Corporation that:
9.1. this Warrant, the Warrant Shares, and any securities issued with respect to any of them by way of a stock dividend or stock split or in connection with the acquisition of the Shares hereundera recapitalization, Holder represents and warrants to the Company that the statements contained in this paragraph 2 are truemerger, accurate, correct and complete in all material respects.
(a) The Shares to be acquired by Holder pursuant to this Agreement consolidation or other reorganization will be acquired for Holder's own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act of 1933, as amended (the "Securities Act"), or any applicable state securities laws, and none of the Shares will be disposed of in contravention of the Securities Act or any applicable state securities laws.
(b) Holder is an accredited investor, restricted securities" as such term is defined under Rule 501 of Regulation D promulgated used in the rules and 30 31 regulations under the Securities Act, Act and Holder is sophisticated and (i) able to fend for himself, (ii) able to evaluate the risks and benefits of the investment in the Shares and (iii) is familiar with, and has been afforded full access to the Company and its management and has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of Shares and that such other information concerning the Company that Holder has requested and is required in Holder's judgment to make an informed decision to acquire the Shares.
(c) Holder is able to bear the economic risk of Holder's investment in the Shares for an indefinite period of time because the Shares securities have not been registered under the Securities Act of 1933 (the "Securities Act") or any state securities law, and canthat such securities must be held indefinitely unless registration is effected or transfer can be made pursuant to appropriate exemptions;
9.2. the Holder has read, and fully understands, the terms of this Warrant set forth on its face and the attachments hereto, including the restrictions on transfer contained herein;
9.3. the Holder is purchasing for investment for its own account and not be sold unless subsequently registered under with a view to or for sale in connection with any distribution of this Warrant or the Securities Act Warrant Shares and it has no intention of selling such securities in a public distribution in violation of the federal securities laws or any applicable state securities acts or an exemption laws; provided that nothing contained herein will prevent Holder from transferring such registration is available.
(d) Holder will not sell, assign or otherwise transfer the Shares subscribed for herein unless such sale, assignment or other transfer is made securities in compliance with the terms of that Shareholders' Agreement dated July 6, 1999, among this Warrant and the Company, applicable federal and state securities laws.
9.4. the Holder and certain other investors named therein, as amended is an "accredited investor" within the meaning of paragraph (a) of Rule 501 of Regulation D promulgated by the First Amendment to Shareholders' Agreement dated as of May 31, 2000 Securities and Exchange Commission (the "Shareholders' AgreementCommission") and an "excluded purchaser" within the meaning of Section 25102(f) of the California Corporate Securities Law of 1968; and
9.5. the Corporation may affix the following legend (in addition to any other legend(s), if any, required by applicable state corporate and/or securities laws) to certificates for shares of Common Stock (or other securities) issued upon exercise of this Warrant: "The securities represented by this certificate have not been registered under the Securities Act of 1933 (the "Act") or registered or qualified under any state securities laws ("State Securities Laws").
(e) Holder has full corporate . They may not be sold, offered for sale, pledged or individual power, as applicable, and authority to execute and deliver this Agreement and to perform its, his or her obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of Holder, enforceable in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights 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 discretion of the court before which any proceeding therefor may be brought. The execution, delivery and performance of this Agreement and such other agreements by Holder does not and will not (A) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws or similar organizational documents of Holder, as applicable, (B) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Agency (as defined below) to which Holder is subject or (C) conflict with, violate or constitute a breach or default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or of any agreement, contract or instrument to which Holder is a party or result hypothecated in the acceleration of, create absence of a registration statement and/or qualification in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, note, bond, mortgage, deed of trust, or other arrangement to which Holder is a party or by which he is bound or to which any of its, his or her assets is subject. Holder further represents and warrants that Holder is not now in breach of any such agreement, contract or instrument to which Holder is a party. Holder need not give any notice to, make any filing with, or obtain any authorization, consent or approval of any Governmental Authority in order to consummate the transactions contemplated hereby.
(f) Holder has no liability or obligation to pay any fees or commissions to any broker, finder or agent effect with respect to the transactions contemplated hereby for which sale of such securities under the Act and/or State Securities Laws or an opinion of counsel satisfactory to the Company could become liable or obligatedthat such registration and/or qualification is not required".
(g) There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by, or, to the knowledge of Holder, threatened against him.
Appears in 1 contract
Samples: Secured Promissory Note (Gti Corp)
Representations of Holder. In connection with the acquisition of the Shares hereunder, The Holder represents and warrants to that it is acquiring the Company that Warrant and the statements contained in this paragraph 2 are true, accurate, correct and complete in all material respects.
(a) The Warrant Shares to be acquired by Holder pursuant to this Agreement will be acquired solely for Holder's own its account for investment and not with a view toto or for sale or distribution of said Warrant or Warrant Shares or any part thereof. The Holder also represents that the entire legal and beneficial interests of the Warrant and Warrant Shares the Holder is acquiring are being acquired for, or intention ofand will be held for, distribution thereof in violation of its account only. The Holder understands that the Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the "Securities “Act"”) on the basis that no distribution or public offering of the stock of the Company is to be effected. The Holder realizes that the basis for the exemption may not be present if, notwithstanding its representations, the Holder has a present intention of acquiring the securities for a fixed or determinable period in the future, selling (in connection with a distribution or otherwise), granting any participation in, or any applicable state securities laws, and none of otherwise distributing the Shares will be disposed of in contravention of the Securities Act or any applicable state securities laws.
(b) Holder is an accredited investor, as such term is defined under Rule 501 of Regulation D promulgated under the Securities Act, and Holder is sophisticated and (i) able to fend for himself, (ii) able to evaluate the risks and benefits of the investment in the Shares and (iii) is familiar with, and has been afforded full access to the Company and its management and has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of Shares and such other information concerning the Company that securities. The Holder has requested no such present intention. The Holder recognizes that the Warrant and is required in Holder's judgment to make an informed decision to acquire the Shares.
(c) Holder is able to bear the economic risk of Holder's investment in the Warrant Shares for an indefinite period of time because the Shares have not been registered under the Securities Act and cannot must be sold held indefinitely unless they are subsequently registered under the Securities Act and any applicable state securities acts or an exemption from such registration is available.
(d) . The Holder will not sellrecognizes that the Company has no obligation to register the Warrant or the Warrant Shares, assign or otherwise transfer to comply with any exemption from such registration. The Holder is aware that neither the Warrant nor the Warrant Shares subscribed for herein may be sold pursuant to Rule 144 adopted under the Act unless such salecertain conditions are met, assignment or other transfer is made in compliance with the terms of that Shareholders' Agreement dated July 6, 1999including, among other things, the existence of a public market for the shares, the availability of certain current public information about the Company, the resale following the required holding period under Rule 144 and the number of shares being sold during any three month period not exceeding specified limitations. The Holder further agrees not to make any disposition of all or any part of the Warrant or Warrant Shares in any event unless and certain other investors named thereinuntil the Holder shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and if reasonably requested by the Company, the Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, for the Holder to the effect that such disposition will not require registration of such Warrant or Exercise Shares under the Act or any applicable state securities laws. The Company agrees that it will not require an opinion of counsel with respect to transactions under Rule 144 of the Securities Act of 1933, as amended by the First Amendment to Shareholders' Agreement dated as amended, except in unusual circumstances. The purpose of May 31, 2000 (the "Shareholders' Agreement").
this paragraph (e) is the ensure the Company does not unintentionally violate any federal or state securities laws; the Company agrees that it will not object to or prevent any disposition of the Warrant or the Warrant Shares that does not cause such a violation. The Holder has full corporate or individual power, as applicable, understands and authority agrees that all certificates evidencing the Warrant Shares to execute and deliver this Agreement and to perform its, his or her obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of Holder, enforceable in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights generally, and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and issued to the discretion of Holder may bear the court before which any proceeding therefor may be broughtfollowing legend: THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED. The execution, delivery and performance of this Agreement and such other agreements by Holder does not and will not (A) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws or similar organizational documents of Holder, as applicable, (B) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Agency (is an “accredited investor” as defined below) to which Holder is subject or (C) conflict with, violate or constitute a breach or default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or of any agreement, contract or instrument to which Holder is a party or result in Regulation D promulgated under the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, note, bond, mortgage, deed of trust, or other arrangement to which Holder is a party or by which he is bound or to which any of its, his or her assets is subject. Holder further represents and warrants that Holder is not now in breach of any such agreement, contract or instrument to which Holder is a party. Holder need not give any notice to, make any filing with, or obtain any authorization, consent or approval of any Governmental Authority in order to consummate the transactions contemplated herebyAct.
(f) Holder has no liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated hereby for which the Company could become liable or obligated.
(g) There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by, or, to the knowledge of Holder, threatened against him.
Appears in 1 contract
Samples: Engagement Agreement (IdentifySensors Biologics Corp.)
Representations of Holder. In connection with The Holder makes the acquisition of the Shares hereunder, Holder represents and warrants to the Company that the statements contained in this paragraph 2 are true, accurate, correct and complete in all material respects.following representations:
(a) The No portion of the Note has been assigned, pledged or transferred and the Holder owns the Note free and clear of any liens or encumbrances;
(b) Holder is acquiring the Conversion Shares to be acquired by Holder pursuant to this Agreement will be acquired for Holder's its own account account, it is acquiring such Conversion Shares not for the benefit of any other person, and not with a view to, to the resale or intention of, distribution thereof in violation of the Conversion Shares;
(c) Xxxxxx is not acting for the account or benefit of a U.S. person or a person within the United States, and the offer and sale of the Conversion Shares to the Holder has been effected in reliance on Rule 903 of Regulation S of the U.S. Securities Act of 1933, as amended amended, and the rules and regulations promulgated thereunder (the "“Securities Act"”), or any applicable state securities laws, and none of the Shares will be disposed of in contravention of the Securities Act or any applicable state securities laws.;
(bd) Holder Xxxxxx has knowledge in financial and business affairs, is capable of evaluating the merits and risks of an accredited investor, as such term is defined under Rule 501 of Regulation D promulgated under the Securities Act, and Holder is sophisticated and (i) able to fend for himself, (ii) able to evaluate the risks and benefits of the investment in the Conversion Shares and Holder has not received an offering memorandum or similar disclosure documents;
(iiie) is familiar with, and Holder has been afforded full access to the Company and its management and has had given an adequate opportunity to ask questions of, and receive answers from, the officers of the Debtor concerning the terms and conditions sale of the offering of Conversion Shares and to obtain such other additional information concerning as the Company that Holder has requested and is required deems necessary in Holder's judgment order to make evaluate an informed decision to acquire the Shares.
(c) Holder is able to bear the economic risk of Holder's investment in the Shares for an indefinite period Debtor and the Debtor has provided all information requested by the Holder;
(f) none of time because the Conversion Shares have not been registered under the Securities Act and canor under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold unless subsequently registered under in the United States or to U.S. Persons, as that term is defined in Regulation S of the Securities Act and any applicable state securities acts or Act, except pursuant to an exemption from such from, or in a transaction not subject to, the registration is available.requirements of the Securities Act; and
(dg) Holder will not sell, assign or otherwise transfer the Shares subscribed for herein unless such sale, assignment or other transfer is made in compliance with the terms of that Shareholders' Agreement dated July 6, 1999, among the Company, Holder Xxxxxx has duly executed and certain other investors named therein, as amended by the First Amendment to Shareholders' Agreement dated as of May 31, 2000 (the "Shareholders' Agreement").
(e) Holder has full corporate or individual power, as applicable, and authority to execute and deliver delivered this Agreement to the Debtor and to perform its, his or her obligations hereunder. This Agreement it constitutes the legal, a valid and binding obligation agreement of Holder, the Holder enforceable against the Holder in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights 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 discretion of the court before which any proceeding therefor may be brought. The execution, delivery and performance of this Agreement and such other agreements by Holder does not and will not (A) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws or similar organizational documents of Holder, as applicable, (B) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Agency (as defined below) to which Holder is subject or (C) conflict with, violate or constitute a breach or default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or of any agreement, contract or instrument to which Holder is a party or result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, note, bond, mortgage, deed of trust, or other arrangement to which Holder is a party or by which he is bound or to which any of its, his or her assets is subject. Holder further represents and warrants that Holder is not now in breach of any such agreement, contract or instrument to which Holder is a party. Holder need not give any notice to, make any filing with, or obtain any authorization, consent or approval of any Governmental Authority in order to consummate the transactions contemplated hereby.
(f) Holder has no liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated hereby for which the Company could become liable or obligated.
(g) There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by, or, to the knowledge of Holder, threatened against him.
Appears in 1 contract
Representations of Holder. In connection with the acquisition of the Shares hereunder, Holder represents and warrants to the Company that the statements contained in this paragraph 2 are true, accurate, correct and complete in all material respects.that:
(a) The Shares Hxxxxx is aware of the Company's business affairs and financial condition and has acquired sufficient information about the Company to be acquired reach an informed and knowledgeable decision to acquire the Securities. Hxxxxx acknowledges that any business plans prepared by Holder pursuant the Company have been, and continue to be, subject to change and that any actual business or financial results may vary significantly from those projected by the Company. Hxxxxx also acknowledges that it is relying solely on its own counsel for legal advice, and not on any statements or representations of the Company or its agents for legal advice with respect to this Agreement will be acquired investment or the transactions contemplated by the Agreements.
(b) Holder is purchasing the Securities for Holderinvestment for Hxxxxx's own account only and not with a view to, or intention offor resale in connection with, distribution any "distribution" thereof in violation within the meaning of the Securities Act of 1933, as amended (the "Securities 1933 Act"), ) or under any applicable provision of state securities laws, and none of the Shares will be disposed of in contravention of law. Holder does not have any present intention to transfer the Securities Act to any person or any applicable state securities laws.
(b) Holder entity. Hxxxxx is an accredited investor, as such term is defined under Rule 501 of Regulation D promulgated under the Securities Act, and Holder is sophisticated and (i) able to fend for himself, (ii) able to evaluate the risks and benefits of the aware that his or her investment in the Shares Company is a speculative investment that has limited liquidity and (iii) is familiar with, and has been afforded full access subject to the Company risk of complete loss. Hxxxxx is able, without impairing his or her financial condition, to hold the Securities for an indefinite period and its management and has had an opportunity to ask questions and receive answers concerning suffer a complete loss of his or her investment in the terms and conditions of the offering of Shares and such other information concerning the Company that Holder has requested and is required in Holder's judgment to make an informed decision to acquire the SharesSecurities.
(c) Holder is able to bear understands that the economic risk of Holder's investment in the Shares for an indefinite period of time because the Shares Securities have not been registered under the Securities 1933 Act and cannot be sold unless subsequently registered under by reason of a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of Hxxxxx's investment intent as expressed herein.
(d) Holder understands that the Securities Act are "restricted securities" under applicable U.S. federal and any applicable state securities acts laws and that, pursuant to these laws, Holder must hold the Securities indefinitely unless they are registered with the Securities and Exchange Commission (the "SEC") andqualified by state authorities, or an exemption from such registration and qualification requirements is available.
(d) . Holder will acknowledges that the Company has no obligation to register or qualify the Securities for resale. Holder further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not selllimited to, assign or otherwise transfer the Shares subscribed for herein unless such time and manner of sale, assignment or other transfer the holding period for the Securities, and requirements relating to the Company which are outside of Holder's control, and which the Company is made in compliance with the terms of that Shareholders' Agreement dated July 6, 1999, among the Company, Holder under no obligation and certain other investors named therein, as amended by the First Amendment may not be able to Shareholders' Agreement dated as of May 31, 2000 (the "Shareholders' Agreement")satisfy.
(e) Holder has full corporate or individual power, as applicable, and authority Hxxxxx is not subject to execute and deliver this Agreement and any "bad actor" disqualifications described in Rule 506(d)(1)(i) to perform its, his or her obligations hereunder. This Agreement constitutes (viii) under the legal, valid and binding obligation of Holder, enforceable in accordance with its terms1933 Act, except that for disqualifications covered by Rule 506(d)(2)(ii) or (iiii) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter under the 1933 Act and disclosed in effect, affecting creditors' rights generally, and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and writing in reasonable detail to the discretion of the court before which any proceeding therefor may be brought. The execution, delivery and performance of this Agreement and such other agreements by Holder does not and will not (A) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws or similar organizational documents of Holder, as applicable, (B) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Agency (as defined below) to which Holder is subject or (C) conflict with, violate or constitute a breach or default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or of any agreement, contract or instrument to which Holder is a party or result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, note, bond, mortgage, deed of trust, or other arrangement to which Holder is a party or by which he is bound or to which any of its, his or her assets is subject. Holder further represents and warrants that Holder is not now in breach of any such agreement, contract or instrument to which Holder is a party. Holder need not give any notice to, make any filing with, or obtain any authorization, consent or approval of any Governmental Authority in order to consummate the transactions contemplated herebyCompany.
(f) Holder has no liability or obligation to pay any fees or commissions to any brokerHXXXXX HAS REVIEWED WITH ITS OWN TAX ADVISORS THE U.S. FEDERAL, finder or agent with respect to the transactions contemplated hereby for which the Company could become liable or obligatedSTATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THIS PURCHASE AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. WITH RESPECT TO SUCH MATTERS, HOLDER DOES NOT RELY ON ANY STATEMENTS OR REPRESENTATIONS OF THE COMPANY OR ANY OF ITS AGENTS, WRITTEN OR ORAL. HXXXXX UNDERSTANDS THAT IT (AND NOT THE COMPANY) SHALL BE RESPONSIBLE FOR ITS OWN TAX LIABILITY THAT MAY ARISE AS A RESULT OF THIS PURCHASE OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(g) There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by, or, to the knowledge of Holder, threatened against him.
Appears in 1 contract
Representations of Holder. In connection with By acceptance hereof, the acquisition of the Shares hereunder, Holder hereby represents and warrants to the Company that the statements contained in this paragraph 2 are true, accurate, correct and complete in all material respects.as follows:
(a) The Holder represents and warrants that it is acquiring the Warrant and the Warrant Shares to be acquired by Holder pursuant to this Agreement will be acquired solely for Holder's own its account for investment and not with a view to, to or intention of, for sale or distribution thereof in violation of said Warrant or Warrant Shares or any part thereof. The Holder also represents that the entire legal and beneficial interests of the Securities Act of 1933, Warrant and Warrant Shares the Holder is acquiring is being acquired for its account only. The Holder is an “accredited investor” as amended (defined in Rule 501(a) under the "Securities Act"), or any applicable state securities laws, and none of the Shares will be disposed of in contravention of the Securities Act or any applicable state securities laws.
(b) The Holder is an accredited investor, as such term is defined under Rule 501 of Regulation D promulgated under understands that the Securities Act, Warrant and Holder is sophisticated and (i) able to fend for himself, (ii) able to evaluate the risks and benefits of the investment in the Shares and (iii) is familiar with, and has been afforded full access to the Company and its management and has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of Shares and such other information concerning the Company that Holder has requested and is required in Holder's judgment to make an informed decision to acquire the Shares.
(c) Holder is able to bear the economic risk of Holder's investment in the Shares for an indefinite period of time because the Warrant Shares have not been registered under the Securities Act and canon the basis that no distribution or public offering of the stock of the Company is to be effected. The Holder realizes that the basis for the exemption may not be sold present if, notwithstanding its representations, the Holder has a present intention of acquiring the securities for a fixed or determinable period in the future, selling (in connection with a distribution or otherwise), granting any participation in, or otherwise distributing the securities. The Holder has no such present intention.
(c) The Holder recognizes that the Warrant and the Warrant Shares must be held indefinitely unless they are subsequently registered under the Securities Act and any applicable state securities acts or an exemption from such registration is available. The Holder recognizes that the Company has no obligation to register the Warrant or the Warrant Shares of the Company (except as provided for herein), or to comply with any exemption from such registration.
(d) The Holder will not sellis aware that neither the Warrant nor the Warrant Shares may be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met, assign or otherwise transfer the Shares subscribed for herein unless such sale, assignment or other transfer is made in compliance with the terms of that Shareholders' Agreement dated July 6, 1999including, among other things, the existence of a public market for the shares, the availability of certain current public information about the Company, Holder the resale following the required holding period under Rule 144 and certain other investors named therein, as amended by the First Amendment to Shareholders' Agreement dated as number of May 31, 2000 (shares being sold during any three month period not exceeding specified limitations. Hxxxxx is aware that the "Shareholders' Agreement")conditions for resale set forth in Rule 144 have not been satisfied.
(e) Holder has full corporate or individual power, as applicable, and authority to execute and deliver this Agreement and to perform its, his or her obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of Holder, enforceable in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights 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 discretion of the court before which any proceeding therefor may be brought. The execution, delivery and performance of this Agreement and such other agreements by Holder does not and will not (A) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws or similar organizational documents of Holder, as applicable, (B) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Agency (as defined below) to which Holder is subject or (C) conflict with, violate or constitute a breach or default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or of any agreement, contract or instrument to which Holder is a party or result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, note, bond, mortgage, deed of trust, or other arrangement to which Holder is a party or by which he is bound or to which any of its, his or her assets is subject. Holder further represents and warrants that Holder is not now in breach of any such agreement, contract or instrument to which Holder is a party. Holder need not give any notice to, make any filing with, or obtain any authorization, consent or approval of any Governmental Authority in order to consummate the transactions contemplated hereby.
(f) Holder has no liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated hereby for which the Company could become liable or obligated.
(g) There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by, or, to the knowledge of Holder, threatened against him.
Appears in 1 contract
Representations of Holder. In connection with the acquisition (a) As of the Shares hereunderdate hereof, each Holder hereby represents and warrants to the Company that the statements contained in this paragraph 2 are true, accurate, correct and complete in all material respects.Participant that:
(aA) The Shares to be acquired by such Holder pursuant to is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, formation or incorporation;
(B) the execution and delivery of this Agreement will be acquired for Holder's own account by such Holder and not with a view to, or intention performance of, distribution thereof in violation of the Securities Act of 1933, as amended (the "Securities Act"), or any applicable state securities laws, and none of the Shares will be disposed of in contravention of the Securities Act or any applicable state securities laws.
(b) Holder is an accredited investor, as such term is defined under Rule 501 of Regulation D promulgated under the Securities Act, and Holder is sophisticated and (i) able to fend for himself, (ii) able to evaluate the risks and benefits of the investment in the Shares and (iii) is familiar compliance with, and has been afforded full access to the Company and its management and has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of Shares and this Agreement by such other information concerning the Company that Holder has requested and is required in Holder's judgment to make an informed decision to acquire the Shares.
(c) Holder is able to bear the economic risk of Holder's investment in the Shares for an indefinite period of time because the Shares have not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act and any applicable state securities acts or an exemption from such registration is available.
(d) Holder will not sell, assign or otherwise transfer the Shares subscribed for herein unless violate such sale, assignment or other transfer is made in compliance with the terms of that Shareholders' Agreement dated July 6, 1999, among the Company, Holder and certain other investors named therein, as amended by the First Amendment to Shareholders' Agreement dated as of May 31, 2000 (the "Shareholders' Agreement").
(e) Holder has full corporate or individual power, as applicable, and authority to execute and deliver this Agreement and to perform its, his or her obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of Holder, enforceable in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights 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 discretion of the court before which any proceeding therefor may be brought. The execution, delivery and performance of this Agreement and such other agreements by Holder does not and will not (A) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws or similar ’s organizational documents of Holder, as applicable, (B) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Agency (as defined below) to which Holder is subject or (C) conflict with, violate or constitute a breach or default (or an event thatwhich, with notice or lapse of time, or both, would constitute a default) under, or of result in the breach of, any agreement, contract material agreement or other instrument to which Holder it is a party or result that is applicable to it or any of its assets, in each case which would reasonably be expected to materially and adversely affect its ability to carry out the acceleration oftransactions contemplated by this Agreement;
(C) such Holder has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, create has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement;
(D) this Agreement is the legal, valid and binding obligation of such Holder enforceable against such Holder in accordance with its terms (except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws or equitable principles limiting the rights of creditors generally and except that rights with respect to indemnification and contribution obligations may be limited by applicable law);
(E) such Holder has good and marketable title to each Participated Investment, free and clear of all Liens (other than any party Lien that may be created pursuant to this Agreement);
(F) such Holder has the right to accelerateenter into this Agreement without the consent of any third party;
(G) such Holder has not dealt with any broker, terminateinvestment banker, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, note, bond, mortgage, deed of trust, agent or other arrangement Person that may be entitled to which Holder is a party any commission or by which he is bound or to which compensation in connection with the consummation of any of its, his or her assets is subject. Holder further represents and warrants that Holder is not now in breach of any such agreement, contract or instrument to which Holder is a party. Holder need not give any notice to, make any filing with, or obtain any authorization, consent or approval of any Governmental Authority in order to consummate the transactions contemplated hereby.by this Agreement; and
(fH) except as expressly stated in this Agreement, such Holder has makes no liability representations or obligation to pay any fees warranties, express or commissions to any brokerimplied, finder or agent including with respect to (a) the collectability of the Participation Interests, or (b) the transactions contemplated hereby for which the Company could become liable or obligatedby this Agreement.
(g) There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by, or, to the knowledge of Holder, threatened against him.
Appears in 1 contract
Samples: Master Participation Agreement (Business Development Corp of America)
Representations of Holder. In addition, in connection with the acquisition issuance of the Shares hereunderthis Warrant, Holder specifically represents and warrants to the Company that the statements contained in by acceptance of this paragraph 2 are true, accurate, correct and complete in all material respects.Warrant as follows:
(a) The Shares Holder is aware of the Company's business affairs and financial condition, and has acquired information about the Company sufficient to be acquired by reach an informed and knowledgeable decision to acquire this Warrant. Holder pursuant to is acquiring this Agreement will be acquired Warrant for Holder's its own account for investment purposes only and not with a view to, or intention offor the resale in connection with, distribution any "distribution" thereof in violation for purposes of the Securities Act .
(b) Holder understands that this Warrant has not been registered under the Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of 1933Holder's investment intent as expressed herein. In this connection, as amended (Holder understands that, in the "Securities Act")view of the SEC, the statutory basis for such exemption may be unavailable if Holder's representation was predicated solely upon a present intention to hold the Warrant for the minimum capital gains period specified under tax statutes, for a deferred sale, for or until an increase or decrease in the market price of the Warrant, or for a period of one year or any other fixed period in the future.
(c) Holder further understands that this Warrant must be held indefinitely unless subsequently registered under the Act and any applicable state securities laws, and none of the Shares will be disposed of in contravention of the Securities Act or any applicable state securities laws.
(b) unless exemptions from registration are otherwise available. Moreover, Holder is an accredited investor, as such term is defined under Rule 501 of Regulation D promulgated under the Securities Act, and Holder is sophisticated and (i) able to fend for himself, (ii) able to evaluate the risks and benefits of the investment in the Shares and (iii) is familiar with, and has been afforded full access to understands that the Company and its management and has had an opportunity is under no obligation to ask questions and receive answers concerning the terms and conditions of the offering of Shares and such other information concerning the Company that Holder has requested and is required in Holder's judgment to make an informed decision to acquire the Shares.
(c) Holder is able to bear the economic risk of Holder's investment in the Shares for an indefinite period of time because the Shares have not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act and any applicable state securities acts or an exemption from such registration is availableregister this Warrant.
(d) Holder will not sellis aware of the provisions of Rule 144 and 144A, assign promulgated under the Act, which, in substance, permit limited public resale of "restricted securities" acquired, directly or otherwise transfer indirectly, from the Shares subscribed for herein unless issuer thereof (or from an affiliate of such saleissuer), assignment or other transfer is made in compliance with a non-public offering subject to the terms satisfaction of that Shareholders' Agreement dated July 6certain conditions, 1999if applicable, including, among other things: The availability of certain public information about the Company, Holder the resale occurring not less than two years after the party has purchased and certain other investors named thereinpaid for the securities to be sold; the sale being made through a broker in an unsolicited "broker's transaction" or in transactions directly with a market maker (as said term is defined under the Securities Exchange Act of 1934, as amended by amended) and the First Amendment to Shareholders' Agreement dated as amount of May 31, 2000 (securities being sold during any three-month period not exceeding the "Shareholders' Agreement")specified limitations stated therein.
(e) Holder has full corporate or individual power, as applicablefurther understands that at the time it wishes to sell this Warrant there may be no public market upon which to make such a sale, and authority to execute that, even if such a public market then exists, the Company may not be satisfying the current public information requirements of Rule 144 and deliver this Agreement 144A, and to perform itsthat, his or her obligations hereunder. This Agreement constitutes the legalin such event, valid and binding obligation of Holder, enforceable in accordance with its terms, except that (i) such enforcement Holder may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights generally, precluded from selling this Warrant under Rule 144 and (ii) 144A even if the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The execution, delivery and performance of this Agreement and such other agreements by Holder does not and will not (A) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws or similar organizational documents of Holder, as applicable, (B) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Agency (as defined below) to which Holder is subject or (C) conflict with, violate or constitute a breach or default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or of any agreement, contract or instrument to which Holder is a party or result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, note, bond, mortgage, deed of trust, or other arrangement to which Holder is a party or by which he is bound or to which any of its, his or her assets is subject. Holder further represents and warrants that Holder is not now in breach of any such agreement, contract or instrument to which Holder is a party. Holder need not give any notice to, make any filing with, or obtain any authorization, consent or approval of any Governmental Authority in order to consummate the transactions contemplated herebytwo-year minimum holding period had been satisfied.
(f) Holder further understands that in the event all of the requirements of Rule 144 and 144A are not satisfied, registration under the Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rule 144 and 144A are not exclusive, the Staff of the SEC has no liability expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rule 144 and 144A will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or obligation to pay any fees or commissions to any brokersales, finder or agent with respect to the and that such persons and their respective brokers who participate in such transactions contemplated hereby for which the Company could become liable or obligateddo so at their own risk.
(g) There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by, or, to the knowledge of Holder, threatened against him.
Appears in 1 contract
Samples: Common Stock Warrant (Exelixis Inc)
Representations of Holder. In connection with the acquisition of the Shares hereunder, Holder represents and warrants to the Company that the statements contained in this paragraph 2 are true, accurate, correct and complete in all material respects.
(a) The Shares to be acquired by Holder pursuant to this Agreement will be acquired for Holder's own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act of 1933, as amended (the "Securities Act"), or any applicable state securities laws, and none of the Shares will be disposed of in contravention of the Securities Act or any applicable state securities laws.. 2
(b) Holder is an accredited investor, as such term is defined under Rule 501 of Regulation D promulgated under the Securities Act, and Holder is sophisticated and (i) able to fend for himself, (ii) able to evaluate the risks and benefits of the investment in the Shares and (iii) is familiar with, and has been afforded full access to the Company and its management and has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of Shares and such other information concerning the Company that Holder has requested and is required in Holder's judgment to make an informed decision to acquire the Shares.
(c) Holder is able to bear the economic risk of Holder's investment in the Shares for an indefinite period of time because the Shares have not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act and any applicable state securities acts or an exemption from such registration is available.
(d) Holder will not sell, assign or otherwise transfer the Shares subscribed for herein unless such sale, assignment or other transfer is made in compliance with the terms of that Shareholders' Agreement dated July 6, 1999, among the Company, Holder and certain other investors named therein, as amended by the First Amendment to Shareholders' Agreement dated as of May 31, 2000 (the "Shareholders' Agreement"). Holder hereby acknowledges that, pursuant to the terms of Section 8.19 of the Merger Agreement, he will, contemporaneous with the execution hereof, execute a joinder to the Shareholders' Agreement.
(e) Holder has full corporate or individual power, as applicable, power and authority to execute and deliver this Agreement and to perform its, his or her obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of Holder, enforceable in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights 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 discretion of the court before which any proceeding therefor may be brought. The execution, delivery and performance of this Agreement and such other agreements by Holder does not and will not (A) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws or similar organizational documents of Holder, as applicable, (Bi) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Agency (as defined belowin the Merger Agreement) to which Holder is subject or (Cii) conflict with, violate or constitute a breach or default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or of any agreement, contract or instrument to which Holder is a party or result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, note, bond, mortgage, deed of trust, or other arrangement to which Holder is a party or by which he is bound or to which any of its, his or her assets is subject. Holder further represents and warrants that Holder is not now in breach of any such agreement, contract or instrument to which Holder is a party. Holder need not give any notice to, make any filing with, or obtain any authorization, consent or approval of any Governmental Authority (as defined in the Merger Agreement) in order to consummate the transactions contemplated hereby.. 3
(f) Holder has no liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated hereby for which the Company could become liable or obligated.
(g) There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by, or, to the knowledge of Holder, threatened against him.
Appears in 1 contract
Samples: Subscription Agreement (Uti Corp)
Representations of Holder. In connection with the acquisition of the Shares hereunder, Holder represents and warrants to the Company that the statements contained in this paragraph 2 are true, accurate, correct and complete in all material respects.
(a) The Holder has substantial experience in evaluating and investing in private placement transactions of securities of companies similar to the Company so that the Holder is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its interests.
(b) The Holder is acquiring the Shares to be acquired by Holder pursuant to this Agreement will be acquired issuable upon exercise of the Warrant (the “Securities”) for Holder's investment for its own account and not with a view to, or for resale in connection with, any distribution thereof. The Holder understands that the Securities have not been registered under the Act by reason of a specific exemption from the registration provisions of the Act, which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. In this connection, the Holder understands that, in the view of the U.S. Securities and Exchange Commission (the “SEC”), the statutory basis for such exemption may be unavailable if this representation was predicated solely upon a present intention ofto hold the Securities for the minimum capital gains period specified under tax statutes, distribution thereof for a deferred sale, for or until an increase or decrease in violation the market price of the Securities or for a period of one year or any other fixed period in the future.
(c) The Holder acknowledges that the Securities must be held indefinitely unless subsequently registered under the Act or an exemption from such registration is available. The Holder is aware of the provisions of Rule 144 (“Rule 144”) promulgated under the Securities Act of 1933, as amended (the "“Securities Act"”) which permits limited resale of securities purchased in a private placement subject to the satisfaction of certain conditions, including, in case the existence of a public market for the shares, the availability of certain public information about the Company, the resale occurring not less than six months after a party has purchased and paid for the security to be sold, the sale being through a “broker’s transaction” or in a transaction directly with a “market maker” (as provided by Rule 144(f), ) and the number of shares or other securities being sold during any applicable state securities laws, and none of the Shares will be disposed of in contravention of the Securities Act or any applicable state securities lawsthree-month period not exceeding specified limitations.
(d) The Holder further understands that at the time the Holder wishes to sell the Securities there may be no public market upon which such a sale may be effected, and that even if such a public market exists, the Company may not be satisfying the current public information requirements of Rule 144, and that in such event, the Holder may be precluded from selling the Securities under Rule 144 unless a) a six month minimum holding period has been satisfied and b) the Holder is an accredited investor, as such term is defined under Rule 501 of Regulation D promulgated under was not at the Securities Act, and Holder is sophisticated and (i) able to fend for himself, (ii) able to evaluate the risks and benefits time of the investment in sale nor at any time during the Shares and three-month period prior to such sale an affiliate of the Company.
(iiie) is familiar with, and has been afforded full access to the Company and its management and The Holder has had an opportunity to ask questions discuss the Company’s business, management and receive answers concerning financial affairs with its management and an opportunity to review the terms and conditions of Company’s facilities. The Holder understands that such discussions, as well as the offering of Shares and such other written information concerning the Company that Holder has requested and is required in Holder's judgment to make an informed decision to acquire the Shares.
(c) Holder is able to bear the economic risk of Holder's investment in the Shares for an indefinite period of time because the Shares have not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act and any applicable state securities acts or an exemption from such registration is available.
(d) Holder will not sell, assign or otherwise transfer the Shares subscribed for herein unless such sale, assignment or other transfer is made in compliance with the terms of that Shareholders' Agreement dated July 6, 1999, among issued by the Company, Holder and certain other investors named therein, as amended by were intended to describe the First Amendment to Shareholders' Agreement dated as of May 31, 2000 (the "Shareholders' Agreement").
(e) Holder has full corporate or individual power, as applicable, and authority to execute and deliver this Agreement and to perform its, his or her obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of Holder, enforceable in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights 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 discretion aspects of the court before Company’s business and prospects which any proceeding therefor may it believes to be brought. The execution, delivery and performance of this Agreement and such other agreements by Holder does material but were not and will not (A) conflict with necessarily a thorough or result in any breach of any provision of the certificate of incorporation or bylaws or similar organizational documents of Holder, as applicable, (B) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Agency (as defined below) to which Holder is subject or (C) conflict with, violate or constitute a breach or default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or of any agreement, contract or instrument to which Holder is a party or result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, note, bond, mortgage, deed of trust, or other arrangement to which Holder is a party or by which he is bound or to which any of its, his or her assets is subject. Holder further represents and warrants that Holder is not now in breach of any such agreement, contract or instrument to which Holder is a party. Holder need not give any notice to, make any filing with, or obtain any authorization, consent or approval of any Governmental Authority in order to consummate the transactions contemplated herebyexhaustive description.
(f) Holder has no liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated hereby for which the Company could become liable or obligated.
(g) There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by, or, to the knowledge of Holder, threatened against him.
Appears in 1 contract
