Representations of the Subscriber. The undersigned Subscriber hereby represents, warrants, acknowledges and covenants to the Company as follows: a) The information provided by the undersigned in this Agreement or otherwise is true and correct in all respects as of the date hereof; b) The undersigned is fully aware that investment in the Shares of the Company is speculative in nature and subject to numerous and various risks, including but not limited to those the undersigned has discussed with the representatives of the Company; c) No representations or warranties of any kind with respect to the percentage of profit and/or amount or type of consideration, profit or loss that are to be realized, if any, as a result of this transaction have been made to the undersigned by the Company or any agent, employee, or affiliate of the Company, and that in entering into this transaction he is not relying upon any information other than that derived from the results of his own independent investigation or furnished to him by the Company; d) The undersigned has been furnished with all materials relating to the Company and its business activities that have been requested. e) The undersigned has been afforded full opportunity to ask questions of and receive answers from authorized representatives of the Company concerning the terms and conditions of this offering and the undersigned's investment, and all such questions have been answered to the full satisfaction of the undersigned. f) The undersigned has been afforded the full opportunity to obtain any additional information necessary to verify the accuracy of any representations of information provided to the undersigned. g) The undersigned is presently a bona fide resident of the state set forth below, and the address and Social Security Number or Federal Taxpayer Identification Number set forth below are the undersigned's true and correct residence and Social Security Number or Federal Taxpayer Identification Number. The undersigned has no present intention of becoming a resident of any other state or jurisdiction. If the undersigned is an estate or trust, it represents and warrants that it was formed under the laws of, and its principal place of business is within, such state and that it was not organized for the purpose of acquiring the Shares offered hereby. h) The undersigned understands that the sale of the Shares have not been registered under the Act in reliance upon an exemption therefrom for non-public offerings and further understands that the Shares have not been approved or disapproved by the Securities and Exchange Commission, nor has any state securities administrator or agency passed on the accuracy or adequacy of any written information provided by the Company to the undersigned. i) The undersigned (i) has adequate means of providing for his current needs and possible personal contingencies and he has no need and anticipates no need in the foreseeable future for liquidity in his investment in the Company, and (ii) is able to bear the economic risk of this investment and consequently, without limiting the generality of the foregoing, he is able to hold his investment for an indefinite period of time and has sufficient net worth to sustain a loss of his entire investment in the Company in the event such loss should occur. j) If the Subscriber is other than an individual, the person signing on behalf of the Subscriber has full authority to sign on behalf of the Subscriber and bind the Subscriber to the terms of this Agreement. k) If the Subscriber is an entity other than a natural person, it represents that: (i) it is duly organized, validly existing and in good standing under the laws of the state of organization and has all the requisite power and authority to invest in the Shares as provided herein; (ii) such investment does not result in any violations of, or conflict with, any term of the trust agreement or other documents governing the entity; and (iii) this Agreement has been duly executed and delivered on behalf of the Subscriber and constitutes a legal, valid and binding agreement of the Subscriber. l) The undersigned is acquiring his Shares for his own account (no other party has any beneficial interest in the Shares), for investment purposes only, and not with a view to the sale or other distribution or fractionalization thereof, in whole or in part, and is aware of the following matters set forth in paragraphs m-p in addition to those matters otherwise set forth herein. m) There are substantial restrictions on the transferability of the Shares. These securities may not be sold unless such sale is exempt from registration under the Act and applicable state securities laws. The Subscriber has no right to require that the securities be registered under the Act or any state securities laws; accordingly, it may be difficult for him to liquidate his investment in the Company. n) The undersigned further acknowledges that the Company is under no obligation to the undersigned to obtain any exemption from the registration requirements of the Act; and in any event the undersigned shall be responsible for compliance with all conditions on transfer imposed by any securities administrator of any state and for any expenses incurred by the Company for legal or accounting services in connection with reviewing such a proposed transfer and/or issuing opinions in connection therewith; o) No assurances are or have been made regarding the federal or state income tax consequences of investment in the Company, nor has any assurance been made that any federal income tax consequences of investment will not be changed through adoption of new laws, amendments to existing laws or regulations, or changes in the interpretation of existing laws and regulations; and the Subscriber confirms that he has consulted his own tax advisor with respect to the tax consequences and aspects of his investment in the Company. p) In the event of any permitted sale, assignment or transfer of Shares, the seller may suffer adverse tax consequences. q) The undersigned acknowledges that there have been no representations or warranties of any nature by the Company or its representatives concerning the ultimate economic consequences of his investment in the Shares, and declaration of any dividends that may be paid lies in the sole discretion of the board of directors. r) The Subscriber, alone or with his advisors, has the ability and investment sophistication to understand the information provided to him and to determine any need which he may have for additional information. The foregoing representations, warranties, acknowledgements and covenants shall be true and accurate as of the date hereof and as of the date of delivery of the Subscription payment to the Company and shall survive such delivery and the acceptance of this Subscription. The undersigned acknowledges that he understands the meaning and legal consequences of the representations, warranties, acknowledgements and covenants herein and that the Company has relied and will rely thereon, and the undersigned hereby agrees to indemnify and hold harmless the Company and its officers, directors, controlling persons, agents employees, professional advisors and affiliates from and against any and all loss, cost, damage or liability (including reasonable attorney's fees and litigation costs) due to or arising out of a breach of any such representation, warranty, acknowledgment or covenant of the undersigned contained in this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Net LNNX Inc), Stock Purchase Agreement (Net LNNX Inc)
Representations of the Subscriber. a. The undersigned Subscriber hereby represents, warrants, acknowledges represents and covenants warrants to the Company as follows:
a(i) The information provided by that he is the undersigned sole and true party in this Agreement interest and that he is not purchasing for the benefit of any other person (or otherwise that he is true and correct in purchasing for another person who meets all respects as of the date hereof;conditions set forth herein); and
b(ii) that he (and his purchaser representative, if such a purchaser representative is utilized by him) has (have) such knowledge and experience in financial and business matters that he is (they are) capable of evaluating the merits and the risks of this investment.
b. The undersigned understands the risks of, and other considerations relating to, the purchase of Shares.
c. The undersigned is fully aware that investment in acquiring the Shares for which he hereby subscribes for his own account, as principal, for investment purposes only and not with a view to, or for, subdivision, resale, distribution or fractionalization thereof in whole or in part, or for the account, in whole or in part, of others, and no other person has a direct or indirect beneficial interest in such Shares; further, the undersigned will hold the Shares as an investment and has no present intention, agreement or arrangement to divide his participation with others or to resell, assign, transfer or otherwise dispose of all or any part of the Company is speculative Shares subscribed for unless and until he determines, at some future date, that changed circumstances, not in nature and subject to numerous and various risks, including but not limited to those contemplation at the undersigned has discussed with the representatives of the Company;
c) No representations or warranties of any kind with respect to the percentage of profit and/or amount or type of consideration, profit or loss that are to be realized, if any, as a result time of this transaction have been made to the undersigned by the Company or any agentpurchase, employee, or affiliate of the Company, and that in entering into this transaction he is not relying upon any information other than that derived from the results of his own independent investigation or furnished to him by the Company;makes such disposition advisable.
d) d. The undersigned has been furnished with all materials relating the financial ability to bear the Company and its business activities that have been requested.
e) The undersigned has been afforded full opportunity to ask questions economic risk of and receive answers from authorized representatives of the Company concerning the terms and conditions of this offering and the undersigned's his investment, and all such questions have been answered to the full satisfaction of the undersigned.
f) The undersigned has been afforded the full opportunity to obtain any additional information necessary to verify the accuracy of any representations of information provided to the undersigned.
g) The undersigned is presently a bona fide resident of the state set forth below, and the address and Social Security Number or Federal Taxpayer Identification Number set forth below are the undersigned's true and correct residence and Social Security Number or Federal Taxpayer Identification Number. The undersigned has no present intention of becoming a resident of any other state or jurisdiction. If the undersigned is an estate or trust, it represents and warrants that it was formed under the laws of, and its principal place of business is within, such state and that it was not organized for the purpose of acquiring the Shares offered hereby.
h) The undersigned understands that the sale of the Shares have not been registered under the Act in reliance upon an exemption therefrom for non-public offerings and further understands that the Shares have not been approved or disapproved by the Securities and Exchange Commission, nor has any state securities administrator or agency passed on the accuracy or adequacy of any written information provided by the Company to the undersigned.
i) The undersigned (i) has adequate means of for providing for his current needs and possible personal contingencies and he has no need and anticipates no need in the foreseeable future for liquidity in with respect to his investment in the shares.
e. All of the information which is set forth below with respect to the undersigned is correct and complete as of the date hereof, and if there should be any material change in such information prior to the acceptance of this subscription by the Company, and (ii) is able the undersigned will immediately furnish the revised or corrected information to bear the economic risk of this investment and consequentlyCompany.
f. The undersigned has not been furnished any oral representation, without limiting warranty or information in connection with the generality offering of the foregoing, he is able to hold his investment for an indefinite period of time and has sufficient net worth to sustain a loss of his entire investment in Shares by the Company in the event such loss should occuror any of its officers, employees, agents, affiliates or subsidiaries.
j) If g. The undersigned acknowledges that neither the Subscriber is other than an individual, United States Securities and Exchange Commission nor the person signing on behalf securities commissioner of any state has made any determination as to the merits of a purchase of the Subscriber has full authority to sign on behalf Shares.
h. The undersigned was at no time solicited by any leaflet, public promotional meeting, circular, newspaper or magazine article, radio or television advertisement, or any other form of general advertising or solicitation in connection with the offer, sale, or purchase of the Subscriber and bind the Subscriber to the terms of securities through this Agreement.
k) i. The undersigned acknowledges that this Agreement may be accepted or rejected in whole or in part by the Company and that, to the extent that the subscription may be rejected, the accompanying subscription payment will be refunded.
j. If the Subscriber Investor is an entity a corporation, partnership, limited liability company, trust, estate or other than a natural personentity, it represents that: (i) it is duly organized, validly existing and in good standing under the laws of the state its jurisdiction of organization and has all the requisite power and authority to invest in the Shares as provided herein; (ii) such investment does not result the execution, delivery and performance by it of this Agreement are within its powers, have been duly authorized by all necessary action on its behalf and require no action by or in any violations respect of, or conflict filing with, any term governmental body, agency or official and do not contravene, or constitute a default under any provision of the trust agreement applicable law or regulation or of its certificate of incorporation or other comparable organizational documents governing or any agreement, judgment, injunction, order, decree or other instrument binding upon it.
k. If the entity; Investor is a natural person, the execution, delivery and (iii) performance by such person of this Agreement has been duly executed are within such person’s legal right and delivered on behalf power, require no action by or in respect of, or filing with, any governmental body, agency, or official and do not contravene, or constitute a default under, any provision of applicable law or regulation or of any agreement, judgment, injunction, order, decree or other instrument binding upon such person.
l. The Investor is an “accredited investor” within the Subscriber and constitutes a legalmeaning of Rule 501 under the Securities Act of 1933, valid and binding agreement as amended. See Investor Suitability Requirements attached for reference to this representation of the Subscriber.
l) The undersigned is acquiring his Shares for his own account (no other party has any beneficial interest in the Shares), for investment purposes only, and not with a view to the sale or other distribution or fractionalization thereof, in whole or in part, and is aware of the following matters set forth in paragraphs m-p in addition to those matters otherwise set forth herein.
m) There are substantial restrictions on the transferability of the Shares. These securities may not be sold unless such sale is exempt from registration under the Act and applicable state securities laws. The Subscriber has no right to require that the securities be registered under the Act or any state securities laws; accordingly, it may be difficult for him to liquidate his investment in the Company.
n) The undersigned further acknowledges that the Company is under no obligation to the undersigned to obtain any exemption from the registration requirements of the Act; and in any event the undersigned shall be responsible for compliance with all conditions on transfer imposed by any securities administrator of any state and for any expenses incurred by the Company for legal or accounting services in connection with reviewing such a proposed transfer and/or issuing opinions in connection therewith;
o) No assurances are or have been made regarding the federal or state income tax consequences of investment in the Company, nor has any assurance been made that any federal income tax consequences of investment will not be changed through adoption of new laws, amendments to existing laws or regulations, or changes in the interpretation of existing laws and regulations; and the Subscriber confirms that he has consulted his own tax advisor with respect to the tax consequences and aspects of his investment in the Company.
p) In the event of any permitted sale, assignment or transfer of Shares, the seller may suffer adverse tax consequences.
q) The undersigned acknowledges that there have been no representations or warranties of any nature by the Company or its representatives concerning the ultimate economic consequences of his investment in the Shares, and declaration of any dividends that may be paid lies in the sole discretion of the board of directors.
r) The Subscriber, alone or with his advisors, has the ability and investment sophistication to understand the information provided to him and to determine any need which he may have for additional information. The foregoing representations, warranties, acknowledgements and covenants shall be true and accurate as of the date hereof and as of the date of delivery of the Subscription payment to the Company and shall survive such delivery and the acceptance of this Subscription. The undersigned acknowledges that he understands the meaning and legal consequences of the representations, warranties, acknowledgements and covenants herein and that the Company has relied and will rely thereon, and the undersigned hereby agrees to indemnify and hold harmless the Company and its officers, directors, controlling persons, agents employees, professional advisors and affiliates from and against any and all loss, cost, damage or liability (including reasonable attorney's fees and litigation costs) due to or arising out of a breach of any such representation, warranty, acknowledgment or covenant of the undersigned contained in this Agreement.
Appears in 1 contract
Samples: Subscription Agreement (Dri Corp)
Representations of the Subscriber. The undersigned Subscriber hereby representsacknowledges, warrants, acknowledges represents and covenants warrants to the Company as follows:
(a) The information provided by If the undersigned in this Agreement Subscriber is an individual: (i) he is at least twenty-one (21) years of age, (ii) the Purchase Price for the Securities does not exceed 25% of Subscriber’s net worth or otherwise is true and correct in all respects as of the date hereof;
b) The undersigned is fully aware that investment in the Shares of the Company is speculative in nature and subject to numerous and various risks, including but not limited to those the undersigned has discussed joint net worth with the representatives Subscriber’s spouse (exclusive of the Company;
chomes, furnishings and personal automobiles), (iii) No representations or warranties of any kind with respect to the percentage of profit and/or amount or type of consideration, profit or loss that are to be realized, if any, as a result of this transaction have been made to the undersigned by the Company or any agent, employee, or affiliate of the Company, and that in entering into this transaction he is not relying upon any information other than that derived from the results of his own independent investigation or furnished to him by the Company;
d) The undersigned has been furnished with all materials relating to the Company and its business activities that have been requested.
e) The undersigned has been afforded full opportunity to ask questions of and receive answers from authorized representatives of the Company concerning the terms and conditions of this offering and the undersigned's investment, and all such questions have been answered to the full satisfaction of the undersigned.
f) The undersigned has been afforded the full opportunity to obtain any additional information necessary to verify the accuracy of any representations of information provided to the undersigned.
g) The undersigned is presently a bona fide resident and domiciliary (not a temporary or transient resident) of the state set forth below, as his legal residence below his signature on the signature page hereof and the address and Social Security Number or Federal Taxpayer Identification Number set forth below are the undersigned's true and correct residence and Social Security Number or Federal Taxpayer Identification Number. The undersigned has no present intention of becoming a resident of any other state or jurisdiction. jurisdiction and (iv) he has adequate means to provide for his current needs and personal contingencies and has the financial ability to bear the economic risk, with no need for liquidity, with respect to his investment in the Securities.
(b) If the undersigned Subscriber is an estate a partnership, corporation, trust or trustother entity, it represents and warrants that (i) it was formed organized or incorporated under the laws ofof the jurisdiction set forth as state of incorporation below its signature on the signature page hereof and has no present intention of altering the jurisdiction of its organization or incorporation, and (ii) its principal place of business is withinlocated in the state set forth below its signature on the signature page hereof and it has no present intention of altering the state of the location of its principal place of business, (iii) it is authorized and qualified and has full right and power to purchase and hold the Securities and to perform its obligations pursuant to the provisions hereof, (iv) the person signing this Subscription Agreement and any other instrument executed and delivered herewith on behalf of such state entity has been duly authorized by such entity and that it was has full power and authority to do so, (v) such entity has not organized been formed for the specific purpose of acquiring an interest in the Shares offered hereby.
hCompany, unless each equity owner of such entity is an accredited investor under Section 501(a) The undersigned understands that the sale of the Shares have not been registered Regulation D promulgated under the Securities Act in reliance upon an exemption therefrom for non-public offerings and further understands that has submitted information to the Shares have not been approved or disapproved by the Securities Company substantiating such qualification, and Exchange Commission, nor has (vi) it hereby agrees to supply any state securities administrator or agency passed on the accuracy or adequacy of any written additional information provided as may be reasonably requested by the Company to confirm the undersignedforegoing representations.
i(c) The undersigned (i) Subscriber understands that no federal or state agency has adequate means passed upon the accuracy of providing for his current needs and possible personal contingencies and he has no need and anticipates no need in the foreseeable future for liquidity in his investment in Subscription Documents or the Company, and (ii) is able SEC Documents nor made any finding or determination as to bear the economic risk merits or fairness of this investment and consequently, without limiting that the generality offering and sale of the foregoingSecurities and the Underlying Common Stock is intended to be exempt from registration both under the Securities Act by virtue of the exemption contained in Section 4(2) of the Securities Act, he is able to hold his investment for an indefinite period and the provisions of time Rule 506 of Regulation D promulgated thereunder, and has sufficient net worth to sustain a loss the securities laws of his entire investment in the Company in the event such loss should occurcertain states.
j(d) If the The Subscriber is other than an individual, the person signing on behalf of the Subscriber has full authority to sign on behalf of the Subscriber and bind the Subscriber to the terms of this Agreement.
k) If the Subscriber is an entity other than a natural person, it represents that: (i) it is duly organizedwill acquire and hold the Securities solely for its own account, validly existing and in good standing under the laws of the state of organization and has all the requisite power and authority to invest in the Shares as provided herein; (ii) such investment does not result in any violations of, or conflict with, any term of the trust agreement or other documents governing the entity; and (iii) this Agreement has been duly executed and delivered on behalf of the Subscriber and constitutes a legal, valid and binding agreement of the Subscriber.
l) The undersigned is acquiring his Shares for his own account (no other party has any beneficial interest in the Shares)principal, for investment purposes only, and not with a view to the sale to, or other for resale, distribution or fractionalization thereof, in whole of all or in partany part of such Securities, and (ii) has no present intention, agreement or arrangement to divide its participation with others or to resell, assign, transfer or otherwise dispose of all or any part of the Securities subscribed for or the Underlying Common Stock. No other person has any interest in the right to receive income in respect of the Subscriber’s interest in the Company.
(e) In making its decision to purchase the Securities herein subscribed for, the Subscriber has evaluated the risk of investing in the Securities and is acquiring the Securities based only upon its independent examination and judgment as to the prospects of the Company as determined from information obtained directly by the Subscriber from the Company or affiliates thereof. The Subscriber acknowledges receipt of all information requested of the Company. The Securities were not offered to the Subscriber by means of publicly disseminated advertisements or sales literature, nor is the Subscriber aware of the following matters set forth in paragraphs m-p in addition any offers made to those matters otherwise set forth hereinother persons by such means.
m(f) There are substantial restrictions The Subscriber has been given the opportunity: (i) to ask questions of, and receive answers from, the Company concerning the terms and conditions of the offering and other matters pertaining to this investment and all such questions have been answered to the satisfaction of the Subscriber; and (ii) to obtain such additional information necessary to verify the accuracy of the information contained in the Subscription Documents and the SEC Documents or other provided materials, except such information which the Company has indicated it either does not possess and cannot acquire without unreasonable effort or expense or which is proprietary and confidential.
(g) The Subscriber has relied solely on the transferability Subscription Documents and the SEC Documents and on its own investigation of the Sharesinvestment in making its decision on investing in the Securities.
(h) The Subscriber will not sell or otherwise transfer any of its shares of Series H Preferred Stock, Warrants or shares of Underlying Common Stock. These securities may If the Subscriber transfers its shares of Series H Preferred Stock, Warrants or shares of Underlying Common Stock, it will not be sold unless such sale is exempt from registration do so without either: (i) registering the shares or Warrants under the Securities Act and applicable state securities laws; or (ii) delivering an appropriate opinion of counsel satisfactory to the Company that such registration is not required.
(i) Any information which the Subscriber has furnished to the Company and the Company with respect to his financial position, including the information set forth below under Paragraph 7 (Accredited Investor Representation), is correct and complete as of the date of this Subscription Agreement. The Subscriber has no right will immediately furnish revised or corrected information to require the Company should there be any material change in such information prior to the Closing.
(j) The Subscriber understands that the securities foregoing representations, warranties, covenants and agreements will be registered under the Act or any state securities laws; accordingly, it may be difficult for him to liquidate his investment in the Company.
n) The undersigned further acknowledges that relied upon by the Company is under no obligation to as the undersigned to obtain any exemption basis for claiming exemptions from the registration requirements of federal and state securities laws for the Act; and in any event the undersigned shall be responsible for compliance with all conditions on transfer imposed by any securities administrator sale of any state and for any expenses incurred by the Company for legal or accounting services in connection with reviewing such a proposed transfer and/or issuing opinions in connection therewith;
o) No assurances are or have been made regarding the federal or state income tax consequences of investment in the Company, nor has any assurance been made that any federal income tax consequences of investment will not be changed through adoption of new laws, amendments to existing laws or regulations, or changes in the interpretation of existing laws and regulations; and the Subscriber confirms that he has consulted his own tax advisor with respect to the tax consequences and aspects of his investment in the CompanySecurities.
p) In the event of any permitted sale, assignment or transfer of Shares, the seller may suffer adverse tax consequences.
q) The undersigned acknowledges that there have been no representations or warranties of any nature by the Company or its representatives concerning the ultimate economic consequences of his investment in the Shares, and declaration of any dividends that may be paid lies in the sole discretion of the board of directors.
r) The Subscriber, alone or with his advisors, has the ability and investment sophistication to understand the information provided to him and to determine any need which he may have for additional information. The foregoing representations, warranties, acknowledgements and covenants shall be true and accurate as of the date hereof and as of the date of delivery of the Subscription payment to the Company and shall survive such delivery and the acceptance of this Subscription. The undersigned acknowledges that he understands the meaning and legal consequences of the representations, warranties, acknowledgements and covenants herein and that the Company has relied and will rely thereon, and the undersigned hereby agrees to indemnify and hold harmless the Company and its officers, directors, controlling persons, agents employees, professional advisors and affiliates from and against any and all loss, cost, damage or liability (including reasonable attorney's fees and litigation costs) due to or arising out of a breach of any such representation, warranty, acknowledgment or covenant of the undersigned contained in this Agreement.
Appears in 1 contract
Samples: Subscription Agreement (Allin Corp)
Representations of the Subscriber. The undersigned By executing this Subscription Agreement, the Subscriber hereby represents, warrants, acknowledges represents and covenants warrants to the Company as followsthat:
a(i) The information provided by Subscriber understands that Subscriber must bear the undersigned in this Agreement or otherwise is true and correct in all respects as economic risk of the date hereof;
b) The undersigned is fully aware that an investment in the Shares Units for an indefinite period of time.
(ii) Subscriber understands that an investment in Company involves certain risks and has taken full cognizance of and understands all of the Company is speculative in nature and subject to numerous and various risks, including but not limited to those the undersigned has discussed with the representatives of the Company;
c) No representations or warranties of any kind with respect to the percentage of profit and/or amount or type of consideration, profit or loss that are to be realized, if any, as a result of this transaction have been made to the undersigned by the Company or any agent, employee, or affiliate of the Company, and that in entering into this transaction he is not relying upon any information other than that derived from the results of his own independent investigation or furnished to him by the Company;
d) The undersigned has been furnished with all materials risk factors relating to the Company purchase of Shares as set forth in the investment materials packet dated February 10, 2000 which were delivered to the Subscriber (the "Investment Materials"), including the document entitled "List of Recent Developments and its business activities that have been requestedRisk Factors" included the Investment Materials.
e(iii) The undersigned Subscriber acknowledges that Subscriber has been afforded full read and carefully reviewed the Investment Materials and has based a decision to invest solely on the information contained in the Investment Materials; acknowledges that the Company has made available to Subscriber the opportunity to ask questions of of, and receive answers from authorized representatives of from, the Company concerning the terms and conditions of this the offering and the undersigned's investment, and all such questions have been answered to the full satisfaction of the undersigned.
f) The undersigned has been afforded the full opportunity to obtain any additional information necessary to verify the accuracy of any representations of the information provided given to Subscriber in the undersignedInvestment.
g(iv) The undersigned Subscriber is presently acquiring the Units for Subscriber's own account as principal for investment and not with a bona fide resident view to resale or distribution. Subscriber will not sell or otherwise transfer the Shares except in accordance with applicable securities laws.
(v) Subscriber is at least 21 years of the state set forth belowage, and the address and Social Security Number or Federal Taxpayer Identification Number set forth below are the undersigned's true and correct residence and Social Security Number or Federal Taxpayer Identification Number. The undersigned has no present intention of becoming a resident of any other state or jurisdiction. If the undersigned is an estate or trust, it represents and warrants that it was formed under the laws of, and its principal place of business is within, such state and that it was not organized for the purpose of acquiring the Shares offered hereby.
h(a) The undersigned understands that the sale of the Shares have not been registered under the Act in reliance upon an exemption therefrom for non-public offerings and further understands that the Shares have not been approved or disapproved by the Securities and Exchange Commission, nor has any state securities administrator or agency passed on the accuracy or adequacy of any written information provided by the Company to the undersigned.
i) The undersigned (i) Subscriber has adequate means of providing for his Subscriber's current needs and possible personal contingencies and he contingencies, (b) Subscriber has no need and anticipates no need in the foreseeable future for liquidity in his the investment in the CompanyUnits, (c) Subscriber maintains a principal domicile (and is not a transient or temporary resident) at the address shown below, (d) all of Subscriber's investments in and commitments to non-liquid investments are, and after Subscriber's purchase of the Units will be, reasonable in relation to Subscriber's net worth and current needs, and (iie) is able the personal financial information provided by Subscriber to bear the economic risk of this investment and consequently, without limiting the generality of the foregoing, he is able to hold his investment for an indefinite period of time and has sufficient net worth to sustain a loss of his entire investment in the Company in the event such loss should occur"Accredited Purchaser Questionnaire" contained in the Investor Materials accurately reflects Subscriber's current financial condition, with respect to which Subscriber does not anticipate any material adverse changes.
j(vi) If Subscriber understands that the Subscriber is other than an individualCompany shall have the right, the person signing on behalf of the Subscriber has full authority in its sole discretion, to sign on behalf of the Subscriber and bind the Subscriber to the terms of accept or reject this Agreement.
k) If the Subscriber is an entity other than a natural person, it represents that: (i) it is duly organized, validly existing and in good standing under the laws of the state of organization and has all the requisite power and authority to invest in the Shares as provided herein; (ii) such investment does not result in any violations of, or conflict with, any term of the trust agreement or other documents governing the entity; and (iii) this Agreement has been duly executed and delivered on behalf of the Subscriber and constitutes a legal, valid and binding agreement of the Subscriber.
l) The undersigned is acquiring his Shares for his own account (no other party has any beneficial interest in the Shares), for investment purposes only, and not with a view to the sale or other distribution or fractionalization thereofsubscription, in whole or in part, and is aware or to allocate to Subscriber only a portion of the following matters number of Units covered by this subscription. The Company will notify Subscriber whether this subscription is accepted or rejected. To the extent that Subscriber's subscription is rejected, any payment made will be returned to Subscriber without interest and all of Subscriber's obligations hereunder with respect to the rejected portion of the subscription shall terminate.
(vii) Subscriber understands that the neither the shares of Common Stock nor the Warrants comprising the Units have been registered under the Securities Act of 1933, as amended (the "1933 Act"), or the securities laws of any state and, as the result thereof, are subject to substantial restrictions on transfer.
(viii) Subscriber understands and agrees that Subscriber will not sell or otherwise transfer any shares of Common Stock or any of the Warrants comprising the Units unless the Subscriber provides the Company with an opinion of counsel which is reasonably satisfactory to the Company (both as to the issuer of the opinion and the form and substance thereof) that an applicable exemption from the registration requirements of the Securities Act, and any other applicable securities laws is available for the proposed transfer.
(ix) Subscriber understands that (a) the Company has no obligation or intention to register any of the shares of Common Stock or any of the Warrants comprising the Units for resale under any federal or state securities laws or to take any action (except to the extent set forth in paragraphs m-p in addition to those matters otherwise set forth herein.
m) There are substantial restrictions on this Subscription Agreement and except for the transferability filing of reports or the Shares. These securities may not be sold unless such sale is exempt from registration publication of information required by Rule 144 under the Act and applicable state securities laws. The Subscriber has no right to require that the securities be registered under the Act or any state securities laws; accordinglySecurities Act), it may be difficult for him to liquidate his investment in the Company.
n) The undersigned further acknowledges that the Company is under no obligation to the undersigned to obtain which would make available any exemption from the registration requirements of the Act; such laws, and in any event the undersigned shall (b) Subscriber therefore may be responsible for compliance with all conditions on transfer imposed by any securities administrator precluded from selling or otherwise transferring or disposing of any state shares of Common Stock or any of the Warrants comprising the Units, or any portion thereof, and for any expenses incurred by may therefore have to bear the Company for legal or accounting services in connection with reviewing such a proposed transfer and/or issuing opinions in connection therewith;
o) No assurances are or have been made regarding the federal or state income tax consequences economic risk of investment in the CompanyShares for an indefinite period of time.
(x) Subscriber understands that no federal or state agency has approved or disapproved the Units, nor has passed upon or endorsed the merits of the offering thereof, or made any assurance finding or determination as to the fairness of the Units for investment.
(xi) Subscriber acknowledges that, if purchasing the Units subscribed for hereby in a fiduciary capacity, the above representations and warranties in this Section shall be deemed to have been made on behalf of the person or persons for whom the undersigned is so purchasing.
(xii) IF SUBSCRIBER IS A PENNSYLVANIA RESIDENT, THE SUBSCRIBER ACKNOWLEDGES AND UNDERSTANDS THAT SUBSCRIBER HAS THE RIGHT TO CANCEL AND WITHDRAW THIS SUBSCRIPTION AGREEMENT AND HIS OR HER PURCHASE OF SHARES UPON WRITTEN NOTICE TO THE COMPANY GIVEN TO THE COMPANY AT THE ADDRESS SET FORTH ABOVE WITHIN TWO BUSINESS DAYS FOLLOWING RECEIPT BY THE COMPANY OF AN EXECUTED SUBSCRIPTION AGREEMENT FOR THE UNITS. UPON SUCH CANCELLATION OR WITHDRAWAL, THE SUBSCRIBER WILL HAVE NO OBLIGATION OR DUTY UNDER THIS SUBSCRIPTION AGREEMENT TO THE COMPANY OR TO ANY OTHER PERSON AND WILL BE ENTITLED TO THE FULL RETURN WITHOUT INTEREST OF ANY AMOUNT PAID BY THE SUBSCRIBER PURSUANT TO THIS SUBSCRIPTION AGREEMENT. SUBSCRIBER FURTHER ACKNOWLEDGES AND UNDERSTANDS THAT ANY NOTICE OF CANCELLATION OR WITHDRAWAL SHOULD BE MADE BY CERTIFIED OR REGISTERED MAIL OR TELEGRAPH OR OTHER MESSAGE DELIVERY SERVICE. SUCH NOTICE WILL BE EFFECTIVE UPON DEPOSIT IN THE UNITED STATES MAILS, SENT REGISTERED OR CERTIFIED MAIL, OR DELIVERED TO A TELEGRAPH OR OTHER MESSAGE SERVICE FOR TRANSMITTAL, WITH POSTAGE OR OTHER TRANSMITTAL FEES PAID BY SUBSCRIBER.
(xiii) If Subscriber is a Pennsylvania resident, Subscriber agrees that any federal income tax consequences of investment Subscriber will not be changed through adoption sell any portion of new laws, amendments to existing laws or regulations, or changes the securities comprising Subscriber's Units purchased pursuant thereto for one year following the purchase of the Units.
(xiv) Subscriber understands that the Units are being offered and sold in reliance on specific exemptions from the interpretation registration requirements of existing federal and state securities laws and regulations; and the Subscriber confirms that he has consulted his own tax advisor with respect to the tax consequences and aspects of his investment in the Company.
p) In the event of any permitted sale, assignment or transfer of Shares, the seller may suffer adverse tax consequences.
q) The undersigned acknowledges that there have been no representations or warranties of any nature by the Company or its representatives concerning is relying upon the ultimate economic consequences of his investment in the Shares, truth and declaration of any dividends that may be paid lies in the sole discretion of the board of directors.
r) The Subscriber, alone or with his advisors, has the ability and investment sophistication to understand the information provided to him and to determine any need which he may have for additional information. The foregoing representations, warranties, acknowledgements and covenants shall be true and accurate as of the date hereof and as of the date of delivery of the Subscription payment to the Company and shall survive such delivery and the acceptance of this Subscription. The undersigned acknowledges that he understands the meaning and legal consequences accuracy of the representations, warrantieswarranties agreements, acknowledgements acknowledgments and covenants understandings set forth herein and that in order to determine the Company has relied and will rely thereon, applicability of such exemptions and the undersigned hereby agrees suitability of Subscriber to indemnify and hold harmless the Company and its officers, directors, controlling persons, agents employees, professional advisors and affiliates from and against any and all loss, cost, damage or liability (including reasonable attorney's fees and litigation costs) due to or arising out of a breach of any such representation, warranty, acknowledgment or covenant of the undersigned contained in this Agreementacquire Shares.
Appears in 1 contract
Samples: Subscription Agreement (Demegen Inc)
Representations of the Subscriber. The undersigned Subscriber In connection with the purchase of the Series A Preferred Shares, the Subscriber, recognizing that the Company will be relying on the information and on the representations set forth herein, hereby represents, warrants, acknowledges warrants and covenants to the Company agrees as follows:
(a) The information provided by Subscriber is the undersigned sole and true party in this Agreement interest in the Series A Preferred Shares subscribed for hereunder and am not purchasing any of such Series A Preferred Shares for the benefit of any other person, or otherwise in a fiduciary capacity for a person who (or for an entity in which such person) is true and correct in all respects as deemed to be a “purchaser” pursuant to Rule 506 of Regulation D promulgated under the date hereofAct;
(b) The undersigned Subscriber understands that the offer and sale of the Series A Preferred Shares is fully being made by means of this Subscription Agreement and is aware that of the speculative nature and high degree of risk associated with an investment in the Shares and have consulted with my investment and/or legal and/or tax advisors.
(c) Subscriber acknowledges that he/she/it has no need for liquidity in this investment for an indefinite period of time, has adequate means to provide for his/her/its personal needs and can bear the economic risk of the purchase of the Series A Preferred Shares, including the total loss of his/its/her investment.
(d) The Subscriber hereby acknowledges his understanding that the Series A Preferred Shares have not been registered under the Act or qualified under applicable state securities laws and are being offered in reliance upon exemptions therefrom. Subscriber understands that the Company is speculative relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgements, and understandings of Subscriber set forth herein and the representations and warranties in nature and subject to numerous and various risks, including but not limited to those the undersigned has discussed Subscriber Questionnaire executed in conjunction with the representatives Subscription Agreement, establishing that the Subscriber is an “Accredited investor” as defined by Rule 501(a) of Regulation D promulgated under the Act, in order to determine the applicability of such exemptions and the suitability of Subscriber to acquire the Series A Preferred Shares. The Subscriber further acknowledges his understanding that the Company’s reliance on such exemptions are, in part, based upon the representations, warranties, and agreements made by the Subscriber and that the statutory basis for such exemptions would not be present if, notwithstanding such representations, warranties and agreements, the Subscriber were acquiring the Series A Preferred Shares for resale on the occurrence or non-occurrence of some pre-determined event.
(e) Subscriber has either a pre-existing business or personal relationship with the Company or with an officer or director of the Company;
c) No representations ; or warranties such knowledge and experience in financial and business matters that he is capable of any kind with respect to evaluating the percentage of profit and/or amount or type of consideration, profit or loss that are to be realized, if any, as a result of this transaction have been made to the undersigned by the Company or any agent, employee, or affiliate merits and risks of the Companyinvestment in the Shares or, together with any Purchaser Representative being utilized, has such knowledge and that experience.
(f) All information contained in entering into this transaction he is not relying upon any information other than that derived from Subscription Agreement and in the results of his own independent investigation or Subscriber Questionnaire previously furnished to him by the Company;
d) The undersigned has been furnished with all materials relating to the Company is correct and its business activities that have been requestedcomplete. Any material change occurring in either this Subscription Agreement or in the Subscriber Questionnaire prior to acceptance of this subscription shall be promptly reported to the Company.
e) The undersigned has been afforded full opportunity to ask questions of and receive answers from authorized representatives of the Company concerning the terms and conditions of this offering and the undersigned's investment, and all such questions have been answered to the full satisfaction of the undersigned.
f) The undersigned has been afforded the full opportunity to obtain any additional information necessary to verify the accuracy of any representations of information provided to the undersigned.
(g) The undersigned is presently a bona fide resident of the state address set forth below, and the address and Social Security Number or Federal Taxpayer Identification Number set forth below are the undersigned's in this Subscription Agreement is his true and correct residence primary residence, and Social Security Number or Federal Taxpayer Identification Number. The undersigned he has no present intention of becoming a resident of any other state or jurisdiction. If the undersigned is an estate or trust, it represents and warrants that it was formed under the laws of, and its principal place of business is within, such state and that it was not organized for the purpose of acquiring the Shares offered hereby.
(h) The undersigned Subscriber understands that the sale offering of the Series A Preferred Shares have has not been registered under the Act Act, in reliance upon on an exemption therefrom for non-public private offerings and further understands that the Shares have not been approved or disapproved by the Securities and Exchange Commission, nor has any state securities administrator or agency passed on the accuracy or adequacy of any written information provided by the Company pursuant to the undersigned.
iSection 4(2) The undersigned (i) has adequate means of providing for his current needs and possible personal contingencies and he has no need and anticipates no need in the foreseeable future for liquidity in his investment in the Company, and (ii) is able to bear the economic risk of this investment and consequently, without limiting the generality of the foregoingAct and Regulation D there under and that, he is able to hold his investment for an indefinite period of time and has sufficient net worth to sustain as a loss of his entire investment in the Company in the event such loss should occur.
j) If the Subscriber is other than an individualresult, the person signing on behalf of the Subscriber has full authority to sign on behalf of the Subscriber Series A Preferred Shares will be “restricted securities” and bind the Subscriber to the terms of this Agreement.
k) If the Subscriber is an entity other than a natural person, it represents that: (i) it is duly organized, validly existing and in good standing under the laws of the state of organization and has all the requisite power and authority to invest in the Shares as provided herein; (ii) such investment does not result in any violations of, or conflict with, any term of the trust agreement or other documents governing the entity; and (iii) this Agreement has been duly executed and delivered on behalf of the Subscriber and constitutes a legal, valid and binding agreement of the Subscriber.
l) The undersigned is acquiring his Shares for his own account (no other party has any beneficial interest in the Shares), for investment purposes only, and not with a view to the sale or other distribution or fractionalization thereof, in whole or in part, and is aware of the following matters set forth in paragraphs m-p in addition to those matters otherwise set forth herein.
m) There are substantial restrictions on the transferability of the Shares. These securities may not be offered, sold or otherwise disposed of in any manner by the Subscriber unless such sale is exempt from registration the Series A Preferred Shares are subsequently registered under the Act and qualified under any other applicable state securities lawslaw or exemptions from such registration and qualification are available. The Subscriber has no right to require that the securities be registered under the Act or any state securities laws; accordingly, it may be difficult for him to liquidate his investment in the Company.
n) The undersigned further acknowledges understands that the Company is under no obligation to register the undersigned Series A Preferred Shares under the Act or to obtain register or qualify the Series A Preferred Shares under any other applicable securities law, or to comply with any other exemption from under the registration requirements Act or any other securities law, and that the Subscriber has no right to require such registration. The Subscriber further understands that the offering of the Act; Series A Preferred Shares has not been qualified or registered under any foreign or state securities laws in reliance upon the representations made and in any event the undersigned shall be responsible for compliance with all conditions on transfer imposed by any securities administrator of any state and for any expenses incurred information furnished by the Company for legal or accounting services Subscriber herein and any other documents delivered by the Subscriber in connection with reviewing such a this subscription; that this offering has not been reviewed by the Securities and Exchange Commission or by any foreign or state securities authorities; that the Subscriber’s rights to transfer the Series A Preferred Shares will be restricted, which includes restrictions against transfers unless the transfer is not in violation of the Act and applicable state securities laws (including investor suitability standards); and that the Company may in its sole discretion require the Subscriber to provide at Subscriber’s own expense an opinion of its counsel to the effect that any proposed transfer and/or issuing opinions is not in violation of the Act or any state securities laws.
(i) The Subscriber acknowledges and is aware that this subscription is voidable by the Subscriber within three days after the first tender of consideration is made by the Subscriber to the Company, an agent of the Company or an escrow agent. Subsequent to this three-day period, the Subscriber is not entitled to cancel, terminate or revoke this subscription, and any agreements of the Subscriber in connection therewith;herewith shall survive the death or disability of the Subscriber.
(j) The Subscriber has been given access to full and fair disclosure of all material information concerning the Company, including copies of the Company’s Articles of Incorporation, Bylaws, balance sheet and financial projections, and the Company’s Memorandum. The Subscriber has also been given the opportunity to ask questions of, and receive answers from, management of the Company regarding the terms and conditions of this Agreement, and the transactions contemplated thereby, as well as the affairs of the Company, its proposed business plan and related matters. The Subscriber may have access to whatever additional information concerning the Company, its financial condition, business, prospects, management, capitalization, and other similar matters, that the Subscriber or his purchaser representative, if any, desires, provided that the Company can acquire such information without unreasonable effort or expense.
(k) Except as set forth in the Memorandum, the Subscriber has not been furnished with any other any oral representation, warranty, materials or sales literature relating to the offer and sale of the Series A Preferred Shares.
(l) the Subscriber acknowledged that the price of the Series A Preferred Shares has been arbitrarily determined and bears no relationship to the assets or book value of the Company, or other customary investment or valuation criteria.
(m) The Subscriber is acquiring the Series A Preferred Shares for investment purposes only and not with a view to distribution or resale, nor with any present intention of selling or otherwise disposing of all or any of the Shares.
(n) Subscriber is not an underwriter of, or dealer in, the Series A Preferred Shares; and, Subscriber is not acting as such or participating, pursuant to a contractual agreement, in the distribution of the Series A Preferred Shares.
(o) No assurances are If Subscriber is purchasing the Series A Preferred Shares subscribed for hereby in a representative or fiduciary capacity, the representations and warranties in this Agreement shall be deemed to have been made regarding on behalf of each person or entity for whom Subscriber is so purchasing.
(p) Subscriber acknowledges that in making the federal or state income tax consequences of investment in decision to purchases the Shares subscribed for, he/she/it has relied upon independent investigations made by him/her/it and his/her/its representatives, if any, Subscriber and such representatives, if any, prior to any sale, have given Subscriber the opportunity to ask questions of, and to receive answers from the Company, nor or any person acting on their behalf concerning the terms and conditions of this Offering.
(q) If Subscriber is a partnership, corporation or trust, the person executing this Subscription Agreement on its behalf represents and warrants that:
(i) He or she has any assurance made due inquiry to determine the truthfulness of the representations and warranties made pursuant to this Subscription Agreement and hereby represents and warrants that the above representation and warranties shall be deemed to have been made that any federal income tax consequences on behalf of such entity; and,
(ii) He, she or it is duly authorized to make this investment will and to enter into and execute this Subscription Agreement on behalf of such entity; and
(iii) The entity has not be changed through adoption been organized for the specific purpose of new lawsacquiring the Series A Preferred Shares or, amendments to existing laws or regulationsif so, or changes each of the entity’s beneficial owners is an “Accredited Investor” as defined in Rule 501(a) of Regulation D under the interpretation of existing laws and regulations; and the Subscriber confirms that he has consulted his own tax advisor with respect to the tax consequences and aspects of his investment in the CompanyAct.
p) In the event of any permitted sale, assignment or transfer of Shares, the seller may suffer adverse tax consequences.
q) The undersigned acknowledges that there have been no representations or warranties of any nature by the Company or its representatives concerning the ultimate economic consequences of his investment in the Shares, and declaration of any dividends that may be paid lies in the sole discretion of the board of directors.
(r) The Subscriberforegoing representations and warranties are true and accurate as of the date hereof, alone or with his advisors, has the ability and investment sophistication to understand the information provided to him and to determine any need which he may have for additional information. The foregoing representations, warranties, acknowledgements and covenants shall be true and accurate as of the date hereof and as of the date of delivery of the Subscription payment to acceptance by the Company of Subscriber’s subscription, and shall survive such delivery and thereafter. If Subscriber has knowledge, prior to the acceptance of this SubscriptionAgreement by the Company, that any such representations and warranties shall not be true and accurate in any respect, Subscriber, prior to such acceptance, will give written notice of such fact to the Company specifying which representation and warranties are not true and accurate and the reasons therefore.
(s) The Subscriber represents that an investment in the Shares are a suitable investment for the Subscriber, taking into consideration the restrictions on transferability affecting the Shares.
(t) The Subscriber understands that the shares of the Company’s Series A Preferred Shares are and will be when acquired “restricted securities” within the meaning of Rule 144 of the General Rules and Regulations under the Act and applicable state statutes. The undersigned Subscriber consents to the placement of an appropriate restrictive legend or legends bearing the following or similar words on any certificates evidencing the shares and any certificates issued in replacement or exchange therefor and acknowledges that he understands the meaning and legal consequences of the representations, warranties, acknowledgements and covenants herein and that the Company will cause its transfer records to note such restrictions: “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS ARE NOT REQUIRED.”
(u) Offering and Disclosure Documents. Subscriber represents and warrants that he, she or it has relied received copies of the following information relating to the Company:
(i) The Memorandum, including all Exhibits.
(ii) This Subscription Agreement.
(iii) The Subscriber Questionnaire, which the Subscriber must complete and will rely thereon, and the undersigned hereby agrees return to indemnify and hold harmless the Company and its officersif he, directors, controlling persons, agents employees, professional advisors and affiliates from and against any and all loss, cost, damage she or liability (including reasonable attorney's fees and litigation costs) due it desires to or arising out of a breach of any such representation, warranty, acknowledgment or covenant of the undersigned contained subscribe to purchase Shares in this AgreementOffering.
Appears in 1 contract
Samples: Subscription Agreement
Representations of the Subscriber. The undersigned Subscriber In connection with the purchase of the Series A Preferred Shares, the Subscriber, recognizing that the Company will be relying on the information and on the representations set forth herein, hereby represents, warrants, acknowledges warrants and covenants to the Company agrees as follows:
(a) The information provided by Subscriber is the undersigned sole and true party in this Agreement interest in the Series A Preferred Shares subscribed for hereunder and is not purchasing any of such Series A Preferred Shares for the benefit of any other person, or otherwise in a fiduciary capacity for a person who (or for an entity in which such person) is true and correct in all respects as deemed to be a “purchaser” pursuant to Rule 506 of Regulation D promulgated under the date hereofAct;
(b) The undersigned Subscriber understands that the offer and sale of the Series A Preferred Shares is fully being made by means of this Subscription Agreement and is aware that of the speculative nature and high degree of risk associated with an investment in the Shares and has consulted with my investment and/or legal and/or tax advisors.
(c) Subscriber acknowledges that Subscriber has no need for liquidity in this investment for an indefinite period of time, has adequate means to provide for Subscriber’s personal needs and can bear the economic risk of the purchase of the Series A Preferred Shares, including the total loss of Subscriber’s investment.
(d) The Subscriber understands that the Series A Preferred Shares have not been registered under the Act or qualified under applicable state securities laws and are being offered in reliance upon exemptions therefrom. Subscriber understands that the Company is speculative relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgements, and understandings of Subscriber set forth herein and the representations in nature and subject to numerous and various risks, including but not limited to those the undersigned has discussed any additional materials Subscriber furnishes in conjunction with the representatives Subscription Agreement, establishing that the Subscriber is an “Accredited Investor” as defined by Rule 501(a) of Regulation D promulgated under the Act, in order to determine the applicability of such exemptions and the suitability of Subscriber to acquire the Series A Preferred Shares. The Subscriber further acknowledges his understanding that the Company;’s reliance on such exemptions are, in part, based upon the representations, warranties, and agreements made by the Subscriber and that the statutory basis for such exemptions would not be present if, notwithstanding such representations, warranties and agreements, the Subscriber were acquiring the Series A Preferred Shares for resale on the occurrence or non-occurrence of some pre-determined event.
c(e) No representations or warranties of All information contained in this Subscription Agreement and in any kind with respect to the percentage of profit and/or amount or type of consideration, profit or loss that are additional materials to be realized, if any, as a result of this transaction have been made to the undersigned by the Company or any agent, employee, or affiliate of the Company, and that in entering into this transaction he is not relying upon any information other than that derived from the results of his own independent investigation or furnished to him by the Company;
d) The undersigned has been furnished with all materials relating to the Company will be correct and its business activities that have been requestedcomplete. Any material change occurring between the time this Subscription Agreement is entered and prior to acceptance of this subscription shall be promptly reported to the Company.
e) The undersigned has been afforded full opportunity to ask questions of and receive answers from authorized representatives of the Company concerning the terms and conditions of this offering and the undersigned's investment, and all such questions have been answered to the full satisfaction of the undersigned.
(f) The undersigned has been afforded the full opportunity to obtain any additional information necessary to verify the accuracy of any representations of information provided to the undersigned.
g) The undersigned is presently a bona fide resident of the state address set forth below, and the address and Social Security Number or Federal Taxpayer Identification Number set forth below are the undersigned's in this Subscription Agreement is his true and correct residence primary residence, and Social Security Number or Federal Taxpayer Identification Number. The undersigned he has no present intention of becoming a resident of any other state or jurisdiction. If the undersigned is an estate or trust, it represents and warrants that it was formed under the laws of, and its principal place of business is within, such state and that it was not organized for the purpose of acquiring the Shares offered hereby.
h(g) The undersigned Subscriber understands that the sale offering of the Series A Preferred Shares have has not been registered under the Act Act, in reliance upon on an exemption therefrom for non-public private offerings and further understands that the Shares have not been approved or disapproved by the Securities and Exchange Commission, nor has any state securities administrator or agency passed on the accuracy or adequacy of any written information provided by the Company pursuant to the undersigned.
iSection 4(2) The undersigned (i) has adequate means of providing for his current needs and possible personal contingencies and he has no need and anticipates no need in the foreseeable future for liquidity in his investment in the Company, and (ii) is able to bear the economic risk of this investment and consequently, without limiting the generality of the foregoing, he is able to hold his investment for an indefinite period of time Act and has sufficient net worth to sustain Regulation D thereunder and that as a loss of his entire investment in the Company in the event such loss should occur.
j) If the Subscriber is other than an individualresult, the person signing on behalf of the Subscriber has full authority to sign on behalf of the Subscriber Series A Preferred Shares will be “restricted securities” and bind the Subscriber to the terms of this Agreement.
k) If the Subscriber is an entity other than a natural person, it represents that: (i) it is duly organized, validly existing and in good standing under the laws of the state of organization and has all the requisite power and authority to invest in the Shares as provided herein; (ii) such investment does not result in any violations of, or conflict with, any term of the trust agreement or other documents governing the entity; and (iii) this Agreement has been duly executed and delivered on behalf of the Subscriber and constitutes a legal, valid and binding agreement of the Subscriber.
l) The undersigned is acquiring his Shares for his own account (no other party has any beneficial interest in the Shares), for investment purposes only, and not with a view to the sale or other distribution or fractionalization thereof, in whole or in part, and is aware of the following matters set forth in paragraphs m-p in addition to those matters otherwise set forth herein.
m) There are substantial restrictions on the transferability of the Shares. These securities may not be offered, sold or otherwise disposed of in any manner by the Subscriber unless such sale is exempt from registration the Series A Preferred Shares are subsequently registered under the Act and qualified under any other applicable state securities lawslaw or exemptions from such registration and qualification are available. The Subscriber has no right to require that the securities be registered under the Act or any state securities laws; accordingly, it may be difficult for him to liquidate his investment in the Company.
n) The undersigned further acknowledges understands that the Company is under no obligation to register the undersigned Series A Preferred Shares under the Act or to obtain register or qualify the Series A Preferred Shares under any other applicable securities law, or to comply with any other exemption from under the registration requirements Act or any other securities law, and that the Subscriber has no right to require such registration. The Subscriber further understands that the offering of the Act; Series A Preferred Shares has not been qualified or registered under any foreign or state securities laws in reliance upon the representations made and in any event the undersigned shall be responsible for compliance with all conditions on transfer imposed by any securities administrator of any state and for any expenses incurred information furnished by the Company for legal or accounting services Subscriber herein and any other documents delivered by the Subscriber in connection with reviewing such a this subscription; that this offering has not been reviewed by the Securities and Exchange Commission or by any foreign or state securities authorities; that the Subscriber’s rights to transfer the Series A Preferred Shares will be restricted, which includes restrictions against transfers unless the transfer is not in violation of the Act and applicable state securities laws (including investor suitability standards); and that the Company may in its sole discretion require the Subscriber to provide at Subscriber’s own expense an opinion of its counsel to the effect that any proposed transfer and/or issuing opinions is not in violation of the Act or any state securities laws.
(h) The Subscriber acknowledges and is aware that this subscription is voidable by the Subscriber by a signed writing (or verifiable electronic transmission) within three days after the first tender of consideration is made by the Subscriber to the Company, an agent of the Company or an escrow agent. Subsequent to this three-day period, the Subscriber is not entitled to cancel, terminate or revoke this subscription, and any agreements of the Subscriber in connection therewith;herewith shall survive the death or disability of the Subscriber.
o(i) No assurances are The Subscriber has been given access to full and fair disclosure of all material information concerning the Company. The Subscriber has also been given the opportunity to ask questions of, and receive answers from, management of the Company regarding the terms and conditions of this Agreement, and the transactions contemplated thereby, as well as the affairs of the Company, its proposed business plan and related matters. The Subscriber may have access to whatever additional information concerning the Company, its financial condition, business, prospects, management, capitalization, and other similar matters, that the Subscriber or his purchaser representative, if any, desires, provided that the Company can acquire such information without unreasonable effort or expense.
(j) Except as set forth in the Memorandum, the Subscriber has not been furnished with any other any oral representation, warranty, materials or sales literature relating to the offer and sale of the Series A Preferred Shares.
(k) the Subscriber acknowledged that the price of the Series A Preferred Shares has been arbitrarily determined and bears no relationship to the assets or book value of the Company, or other customary investment or valuation criteria.
(l) The Subscriber is acquiring the Series A Preferred Shares for investment purposes only and not with a view to distribution or resale, nor with any present intention of selling or otherwise disposing of all or any of the Shares.
(m) Subscriber is not an underwriter of, or dealer in the Series A Preferred Shares and Subscriber is not acting as such or participating pursuant to a contractual agreement, in the distribution of the Series A Preferred Shares.
(n) If Subscriber is purchasing the Series A Preferred Shares subscribed for in a representative or fiduciary capacity, the representations and warranties in this Agreement shall be deemed to have been made regarding on behalf of each person or entity for whom Subscriber is so purchasing.
(o) Subscriber acknowledges that in making the federal or state income tax consequences decision to purchase the Shares subscribed for, Subscriber has relied upon independent investigations made by Subscriber , and prior to any sale, has been given the opportunity to ask questions of investment in and to receive answers from the Company, nor concerning the terms and conditions of this Offering.
(p) If Subscriber is a partnership, corporation or trust, the person executing this Subscription Agreement on its behalf represents and warrants that:
(i) He or she has any assurance made due inquiry to determine the truthfulness of the representations and warranties made pursuant to this Subscription Agreement and hereby represents and warrants that the above representation and warranties shall be deemed to have been made that any federal income tax consequences on behalf of such entity; and,
(ii) He, she or it is duly authorized to make this investment will and to enter into and execute this Subscription Agreement on behalf of such entity; and
(iii) The entity has not be changed through adoption been organized for the specific purpose of new lawsacquiring the Series A Preferred Shares or, amendments to existing laws or regulationsif so, or changes each of the entity’s beneficial owners is an “Accredited Investor” as defined in Rule 501(a) of Regulation D under the interpretation of existing laws and regulations; and the Subscriber confirms that he has consulted his own tax advisor with respect to the tax consequences and aspects of his investment in the CompanyAct.
p) In the event of any permitted sale, assignment or transfer of Shares, the seller may suffer adverse tax consequences.
(q) The undersigned acknowledges that there have been no foregoing representations or and warranties of any nature by the Company or its representatives concerning the ultimate economic consequences of his investment in the Shares, are true and declaration of any dividends that may be paid lies in the sole discretion accurate as of the board of directors.
r) The Subscriberdate hereof, alone or with his advisors, has the ability and investment sophistication to understand the information provided to him and to determine any need which he may have for additional information. The foregoing representations, warranties, acknowledgements and covenants shall be true and accurate as of the date hereof and as of the date of delivery of the Subscription payment to acceptance by the Company of Subscriber’s subscription, and shall survive such delivery and thereafter. If Subscriber has knowledge, prior to the acceptance of this SubscriptionAgreement by the Company, that any such representations and warranties shall not be true and accurate in any respect, Subscriber, prior to such acceptance, will give written notice of such fact to the Company specifying which representation and warranties are not true and accurate and the reasons therefore.
(r) The Subscriber represents that an investment in the Shares are a suitable investment for the Subscriber, taking into consideration the restrictions on transferability affecting the Shares.
(s) The Subscriber understands that the shares of the Company’s Series A Preferred Shares are and will be when acquired “restricted securities” within the meaning of Rule 144 of the General Rules and Regulations under the Act and applicable state statutes. The undersigned Subscriber consents to the placement of an appropriate restrictive legend or legends bearing the following or similar words on any certificates evidencing the shares and any certificates issued in replacement or exchange therefor and acknowledges that he understands the meaning and legal consequences of the representations, warranties, acknowledgements and covenants herein and that the Company will cause its transfer records to note such restrictions: “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS ARE NOT REQUIRED.”
(t) Offering and Disclosure Documents. Subscriber represents and warrants that in addition to this Subscription Agreement, Subscriber has relied and will rely thereon, and the undersigned hereby agrees to indemnify and hold harmless the Company and its officers, directors, controlling persons, agents employees, professional advisors and affiliates from and against any and all loss, cost, damage or liability (including reasonable attorney's fees and litigation costs) due to or arising out of a breach of any such representation, warranty, acknowledgment or covenant received copies of the undersigned contained in this AgreementCompany’s Private Placement Memorandum.
Appears in 1 contract
Samples: Subscription Agreement
