Representations, Warranties and Agreements of Subscriber. Subscriber hereby represents and warrants to the Company, and hereby covenants and agrees with the Company, as follows: (a) Subscriber has carefully read this Agreement and, to the extent Subscriber believes necessary, has discussed with Subscriber's counsel and other professional advisor(s) the representations, warranties, covenants and agreements which Subscriber makes by signing it, and any applicable limitations upon Subscriber's transfer of the Shares issuable thereunder. Subscriber acknowledges that Subscriber has not relied upon the legal counsel or accountants for the Company regarding the transactions contemplated by this Agreement, and Subscriber has been advised to engage separate legal counsel and accountants to represent Subscriber's individual interest and advise Subscriber regarding the structure of, and risks associated with, such transactions. (b) Subscriber understands that as a publicly traded company, the Company files with the Securities and Exchange Commission (the "SEC") various reports, including quarterly and annual financial statements, annual reports to shareholders, and proxy statements, and that all of such reports, statements and information are available to the public, including Subscriber, from the SEC and directly from the Company. Subscriber acknowledges that the Company has delivered to Subscriber within a reasonable time prior to the execution of this Subscription Agreement a copy of the following: (i) a discussion of certain of the risks inherent in investing in the Shares entitled "Risk Factors"; (ii) the Company's Form 10-K for the fiscal year ended December 31, 1997; (iii) the Company's Form 10-Q for the fiscal quarter ended March 31, 1998; (iv) the Company's press releases since December 31, 1997; (v) the Company's Form 8-K filings since December 31, 1997; and (vi) such of the books and records of the Company and such other documents as Subscriber (and Subscriber's attorney, accountant and/or other advisors) deemed pertinent in order for Subscriber to make an informed investment decision (the documents identified in clauses (i) through (vi) herein are collectively referred to herein as the "Documents"). Subscriber further acknowledges that Subscriber is entering into this Agreement solely on the basis of information contained in the Documents and not on the basis of any information, representations or agreements made by any other person, and that no representations or warranties of any nature have been made to Subscriber with respect to the ultimate economic consequences or tax consequences of Subscriber's investment in the Company. Subscriber acknowledges that any forecasted financial data which may have been given to Subscriber is for illustration purposes only and no assurance is given that actual results will correspond with the results contemplated in any such data. (c) Subscriber acknowledges that Subscriber has had the opportunity to ask questions of, and receive answers from, or obtain additional information from, the executive officers of the Company concerning the financial and other affairs of the Company, and, to the extent deemed necessary in light of Subscriber's personal knowledge of the Company's affairs, Subscriber has asked such questions and received satisfactory answers and desires to invest in the Company. Subscriber has been advised and acknowledges that no federal or state agency has made any finding or determination as to the fairness or merits of an investment in the Company and that no such agency has made any recommendation or endorsement whatsoever with respect to such an investment. (d) Subscriber is an "accredited investor" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Securities Act of 1933, as amended (the "Securities Act"). For this purpose, Subscriber understands that an "accredited investor" includes: (i) any individual who: (A) has a net worth (with spouse) in excess of $1 million; or (B) has had an individual income in excess of $200,000 (or joint income with spouse in excess of $300,000) in each of the two most recent years and who reasonably expects the same income level for the current year; or (C) who is an executive officer or director of the Company; (ii) any entity in which all of the equity owners or partners are "accredited investors"; or (iii) any corporation or partnership with total assets in excess of $5,000,000 that was not formed for the specific purpose of purchasing the securities subscribed hereunder. (e) Subscriber considers himself/herself/itself to be a sophisticated investor in companies similarly situated to the Company, and Subscriber has substantial knowledge and experience in financial and business matters (including knowledge of finance, securities and investments, generally, and experience and skill in investments based on actual participation) such that Subscriber is capable of evaluating the merits and risks of the prospective investment in the Company. (f) Subscriber's current address and, if Subscriber is an entity, Subscriber's state of incorporation or organization, are as set forth on the signature page hereof. If Subscriber is an entity which does not meet the classification set forth under Section 1(d)(iii) above, each of Subscriber's equity owners and/or partners has the same state of residence as the Subscriber's state of organization and none of Subscriber's equity owners and/or partners has any present intention of moving from such state of residency. (g) Subscriber has been advised and acknowledges that the issuance of the Shares has not been registered under the Securities Act, in reliance upon the exemption(s) from registration promulgated thereunder. Subscriber also acknowledges that the issuance of the Shares has not be registered under the securities laws of any state. Consequently, Subscriber agrees that the Shares cannot be resold unless they are registered under the Securities Act (pursuant to Section 5.1 hereof or otherwise) and applicable state securities laws, or unless an exemption from such registration requirements is available. Subscriber has been advised and acknowledges that the Company is under no obligation to take any action necessary in order to make available any exemption for the transfer of the Shares without registration. (h) Subscriber is purchasing the Shares solely for Subscriber's own account and not as nominee for, representative of, or otherwise on behalf of, any other person. Subscriber is purchasing the Shares with the intention of holding the Shares for investment, with no present intention of participating directly or indirectly in a subsequent public distribution of the Shares unless registered under the Securities Act and applicable state securities laws, or unless an exemption from such registration requirements is available. Subscriber shall not make any sale, transfer or other disposition of the Shares in violation of state or federal law. (i) Subscriber has been advised that there is no assurance than an active market for the Shares will continue in the future. Subscriber is aware that Subscriber's investment in the Company is speculative and involves a high degree of risk of loss arising from, among other things, substantial market, operational, competitive and other risks, and, having made Subscriber's own evaluation of the risks associated with this investment, Subscriber is aware and Subscriber has been advised that Subscriber must bear the economic risks of a purchase of the Shares indefinitely. (j) Subscriber acknowledges that the Shares were not offered to Subscriber by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media, or broadcast over television or radio, or (ii) any seminar or meeting to which Subscriber was invited by any of the foregoing means of communication. (k) Subscriber understands and agrees that the Company, and all current and further shareholders of the Company, are relying on the agreements and representations contained herein. (l) In connection with the purchase of the Shares by Subscriber, Subscriber has not and will not pay, and has no knowledge of the payment of, any commission or other direct or indirect remuneration to any person or entity for soliciting or otherwise coordinating the purchase of the Shares, except to such persons or entities (including the Placement Agent) as are duly licensed and/or registered to engage in securities offering and selling activities (or are exempt from such licensing and/or registration requirements) in the state(s) in which such activities have taken place in connection with the transaction contemplated by this Agreement. (m) Subscriber has been advised and agrees that there will be placed on any certificates representing the Shares, or any substitution(s) thereof, a legend stating in substance the following (and including any restrictions or conditions that may be required by any applicable state law), and Subscriber has been advised and further agrees that the Company will refuse to permit the transfer of the Shares out of Subscriber's name in the absence of compliance with the terms of such legend: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, or under any state securities laws and may not be sold, pledged, transferred, assigned or otherwise disposed of except in accordance with such Act and the rules and regulations thereunder and in accordance with applicable state securities laws. The Company will transfer such securities only upon receipt of evidence satisfactory to the Company, which may include an opinion of counsel, that the registration provisions of such Act have been compiled with or that such registration is not required and that such transfer will not violate any applicable state securities laws." (n) Subscriber is aware that the Company may offer and sell additional shares of common stock in the future, thereby diluting Subscriber's percentage equity ownership of the Company.
Appears in 1 contract
Representations, Warranties and Agreements of Subscriber. The Subscriber hereby acknowledges, represents and warrants to to, and agrees with, the Company, on the date hereof and hereby covenants and agrees with on the CompanyClosing Date, as follows:
(a) Subscriber has carefully read this Agreement and, to the extent Subscriber believes necessary, has discussed with Subscriber's counsel and other professional advisor(s) the representations, warranties, covenants and agreements which Subscriber makes by signing it, and any applicable limitations upon Subscriber's transfer of the Shares issuable thereunder. Subscriber acknowledges that Subscriber has not relied upon the legal counsel or accountants for the Company regarding the transactions contemplated by this Agreement, and Subscriber has been advised to engage separate legal counsel and accountants to represent Subscriber's individual interest and advise Subscriber regarding the structure of, and risks associated with, such transactions.
(b) The Subscriber understands that as a publicly traded company, the Company files with offering and sale of the Preferred Shares is intended to be exempt from registration under the Securities and Exchange Commission Act of 1933, as amended (the "SECAct") various reports, including quarterly by virtue of Section 4(2) of the Act and annual financial statements, annual reports to shareholdersthe provisions of Regulation D promulgated thereunder, and proxy statementsin accordance therewith and in furtherance thereof, the Subscriber represents and that all of such reports, statements warrants and information are available to the public, including Subscriber, from the SEC and directly from the Company. Subscriber acknowledges that the Company has delivered to Subscriber within a reasonable time prior to the execution of this Subscription Agreement a copy of the following: agrees as follows:
(i) a discussion of certain of The Subscriber and/or the risks inherent in investing in the Shares entitled "Risk Factors"; (iiSubscriber's adviser(s) has/have received and carefully reviewed the Company's (A) Annual Report on Form 10-K for the fiscal year ended December 31, 1997; 1996 and (iiiB) the Company's Quarterly Reports on Form 10-Q for the fiscal quarter periods ended March 31, 1998; (iv) the Company's press releases since December 311997, June 30, 1997 and September 30, 1997; , respectively (v) collectively, the Company's Form 8-K filings since December 31"Company Reports"), 1997; and (vi) such of understands the books information contained therein. Subscriber acknowledges and records of understands that the Company Reports show that the Company has incurred substantial operating losses since its formation, including the periods covered by such reports, and such other documents as that it has insufficient working capital to continue its planned operations.
(ii) The Subscriber (and acknowledges that the Subscriber, or the Subscriber's attorney, accountant accountant, or adviser(s), has/have had a reasonable opportunity to inspect all documents and records pertaining to this investment (including, without limitation, the Company Reports).
(iii) The Subscriber and/or the Subscriber's adviser(s) has/have had a reasonable opportunity to ask questions and receive answers from a person or persons acting on behalf of the Company concerning the offering of the Preferred Shares and all such questions have been answered to the full satisfaction of the Subscriber.
(iv) In making a decision to invest in the Preferred Shares, the Subscriber has not relied on any information other advisorsthan information contained in the Company Reports and in this Agreement.
(v) deemed pertinent The Subscriber is not subscribing for the Preferred Shares as a result of or subsequent to any advertisement, article, notice or other communication published in order any newspaper, magazine, or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by a person other than a representative of the Company.
(vi) If the Subscriber is a natural person, the Subscriber has reached the age of majority in the jurisdiction in which the Subscriber resides; the Subscriber has adequate means of providing for the Subscriber's current financial needs and contingencies, is able to bear the substantial economic risks of an investment in the Preferred Shares for an indefinite period of time, has no need for liquidity in such investment, and, at the present time, could afford a complete loss of such investment.
(vii) The Subscriber has such knowledge and experience in financial, tax and business matters so as to enable the Subscriber to utilize the information made available to the Subscriber in connection with the offering of the Preferred Shares to evaluate the merits and risks of an investment in the Preferred Shares, and to make an informed investment decision with respect thereto.
(the documents identified in clauses (iviii) through (vi) herein are collectively referred to herein as the "Documents"). Subscriber further acknowledges that The Subscriber is entering into this Agreement solely not relying on the basis Company or any agent of information contained in the Documents and not on the basis of any information, representations or agreements made by any other person, and that no representations or warranties of any nature have been made to Subscriber Company with respect to the ultimate any legal, tax or economic consequences or tax consequences of Subscriber's investment in the Company. Subscriber acknowledges that any forecasted financial data which may have been given advice related to Subscriber is for illustration purposes only and no assurance is given that actual results will correspond with the results contemplated in any such data.
(c) Subscriber acknowledges that Subscriber has had the opportunity to ask questions of, and receive answers from, or obtain additional information from, the executive officers of the Company concerning the financial and other affairs of the Company, and, to the extent deemed necessary in light of Subscriber's personal knowledge of the Company's affairs, Subscriber has asked such questions and received satisfactory answers and desires to invest in the Company. Subscriber has been advised and acknowledges that no federal or state agency has made any finding or determination as to the fairness or merits of an investment in the Company and that no such agency has made any recommendation or endorsement whatsoever with respect to such an investmentPreferred Shares.
(dix) The Subscriber will not sell or otherwise transfer the Preferred Shares or the Common Shares without registration under the Act and applicable state securities laws, or pursuant to an exemption therefrom. The Preferred Shares and the Common Shares have not been registered under the Act or under the securities laws of any state and, other than as provided in the Registration Rights Agreement, the Company will be under no obligation to so register the Common Shares or Preferred Shares. The Subscriber represents that the Subscriber is purchasing the Preferred Shares for the Subscriber's own account, for investment and not with a view to resale or distribution except in compliance with the Act and applicable state securities laws.
(x) The Subscriber recognizes that investment in the Preferred Shares involves substantial risks, including the risk of loss of the entire amount of such investment, and has taken full cognizance of and understands all of the risks related to the purchase of the Preferred Shares.
(xi) The Subscriber's overall commitment to investments which are not readily marketable is reasonable in relation to the Subscriber's net worth.
(b) The Subscriber is an "accredited investor" as that term is defined in Rule 501 501(a) of Regulation D promulgated by the SEC under the Securities Act inasmuch as the Subscriber meets the requirements of 1933one or more of the subparagraphs in Section 9(g) hereof as of the date of this Agreement, as amended and if there is any change in such status prior to the Closing Date, the Subscriber will immediately notify the Company in writing.
(the "Securities Act"). For this purpose, c) The Subscriber understands that an "accredited investor" includes:the Preferred Shares are being offered and sold in reliance on a transactional exemption from the registration requirements of Federal and state securities laws and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgements and understandings of the Subscriber set forth in this Agreement in order to determine the applicability of such exemptions and the suitability of the Subscriber to acquire the Preferred Shares.
(id) The Subscriber is purchasing the Preferred Shares for its own account and not with a view to distribution in violation of any individual who: securities laws. The Subscriber has no present intention to sell the Preferred Shares and the Subscriber has no present arrangement (Awhether or not legally binding) has a net worth (with spouse) in excess of $1 millionto sell the Preferred Shares to or through any person or entity; provided, however, that by making the representations herein, the Subscriber does not agree to hold the Preferred Shares for any minimum or (B) has had an individual income in excess of $200,000 (or joint income with spouse in excess of $300,000) in each other specific term and reserves the right to dispose of the two most recent years Preferred Shares at any time in accordance with Federal and who reasonably expects the same income level for the current year; or (C) who is an executive officer or director of the Company;
(ii) any entity in which all of the equity owners or partners are "accredited investors"; or
(iii) any corporation or partnership with total assets in excess of $5,000,000 that was not formed for the specific purpose of purchasing the state securities subscribed hereunderlaws applicable to such disposition.
(e) The Subscriber considers himself/herself/itself understands that there is no public trading market for the Preferred Shares, that none is expected to be a sophisticated investor in companies similarly situated to the Companydevelop, and that the Preferred Shares and Common Shares must be held indefinitely unless such Preferred Shares and Common Shares are registered under the Act or an exemption from registration is available. The Subscriber has substantial knowledge and experience in financial and business matters (including knowledge of finance, securities and investments, generally, and experience and skill in investments based on actual participation) such that Subscriber been advised or is capable of evaluating the merits and risks aware of the prospective investment in provisions of Rule 144 promulgated under the CompanyAct.
(f) Subscriber's current address and, if The Subscriber is an entity, Subscriber's state of incorporation or organization, are hereby agrees to provide such information and to execute and deliver such documents as set forth on the signature page hereof. If Subscriber is an entity which does not meet the classification set forth under Section 1(d)(iii) above, each of Subscriber's equity owners and/or partners has the same state of residence as Company may deem reasonably appropriate with regard to the Subscriber's state of organization and none of Subscriber's equity owners and/or partners has any present intention of moving from such state of residencysuitability or otherwise in connection with this Agreement.
(g) The execution, delivery and performance of this Agreement by the Subscriber (i) will not constitute a default under or conflict with any agreement or instrument to which the Subscriber is a party or by which it or its assets are bound, (ii) will not conflict with or violate any order, judgment, decree, statute, ordinance or regulation applicable to the Subscriber (including, without limitation, any applicable laws relating to permissible legal investments) and (iii) does not require the consent of any person or entity, other than those that will have been obtained prior to the Closing Date. This Agreement has been advised duly authorized, executed and acknowledges that delivered by the issuance Subscriber and constitutes the valid and binding agreement of the Shares has not been registered under the Securities Act, Subscriber enforceable against it in reliance upon the exemption(s) from registration promulgated thereunder. Subscriber also acknowledges that the issuance of the Shares has not be registered under the securities laws of any state. Consequently, Subscriber agrees that the Shares cannot be resold unless they are registered under the Securities Act (pursuant to Section 5.1 hereof or otherwise) and applicable state securities laws, or unless an exemption from such registration requirements is available. Subscriber has been advised and acknowledges that the Company is under no obligation to take any action necessary in order to make available any exemption for the transfer of the Shares without registrationaccordance with its terms.
(h) The Subscriber is purchasing the Shares solely for Subscriber's own account and has not as nominee for, representative ofretained, or otherwise on behalf ofentered into any agreement or understanding with, any other person. Subscriber is purchasing the Shares with the intention of holding the Shares for investment, with no present intention of participating directly broker or indirectly finder in a subsequent public distribution of the Shares unless registered under the Securities Act and applicable state securities laws, or unless an exemption from such registration requirements is available. Subscriber shall not make any sale, transfer or other disposition of the Shares in violation of state or federal law.
(i) Subscriber has been advised that there is no assurance than an active market for the Shares will continue in the future. Subscriber is aware that Subscriber's investment in the Company is speculative and involves a high degree of risk of loss arising from, among other things, substantial market, operational, competitive and other risks, and, having made Subscriber's own evaluation of the risks associated with this investment, Subscriber is aware and Subscriber has been advised that Subscriber must bear the economic risks of a purchase of the Shares indefinitely.
(j) Subscriber acknowledges that the Shares were not offered to Subscriber by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media, or broadcast over television or radio, or (ii) any seminar or meeting to which Subscriber was invited by any of the foregoing means of communication.
(k) Subscriber understands and agrees that the Company, and all current and further shareholders of the Company, are relying on the agreements and representations contained herein.
(l) In connection with the purchase of the Preferred Shares by the Subscriber, Subscriber has not and the Company will not payincur any liability for any fee, and has no knowledge of the payment of, any commission or other direct compensation on account of any such retention, agreement or indirect remuneration to any person or entity for soliciting or otherwise coordinating understanding by the purchase Subscriber.
(i) The Subscriber acknowledges that:
(i) In making an investment decision, the Subscriber has relied on the Subscriber's own examination of the SharesCompany and the disclosure in the Company Reports, except to such persons or entities (including the Placement Agent) as are duly licensed and/or registered to engage in merits and risks involved. The Preferred Shares have not been recommended by any federal or state securities offering and selling activities (commission or are exempt from such licensing and/or registration requirements) in regulatory authority. Furthermore, the state(s) in which such activities foregoing authorities have taken place in connection with not confirmed the transaction contemplated by accuracy or determined the adequacy of the Company Reports or this Agreement.
(mii) The Subscriber, if executing this Agreement in a representative or fiduciary capacity, has all requisite power and authority to execute and deliver this Agreement in such capacity and on behalf of the subscribing individual, xxxx, partnership, trust, estate, corporation, or other entity for whom the Subscriber is executing this Agreement, and such individual, xxxx, partnership, trust, estate, corporation, or other entity has been advised all requisite power and agrees that there will authority to enter into this Agreement and make an investment in the Preferred Shares.
(iii) The representations, warranties, and agreements of the Subscriber contained in this Agreement shall be placed true and correct in all material respects on any certificates and as of the Closing Date as if made on and as of such date and shall survive the execution and delivery of this Agreement and the purchase of the Preferred Shares.
(iv) For as long as is required by applicable laws, the certificate representing the Preferred Shares and the Common Shares shall bear a legend in substantially the following form, together with any legend required by applicable state laws, and the Subscriber shall not transfer any or all of the Preferred Shares, the Common Shares or any substitution(s) thereofinterests therein, a legend stating except in substance the following (and including any restrictions or conditions that may be required by any applicable state law), and Subscriber has been advised and further agrees that the Company will refuse to permit the transfer of the Shares out of Subscriber's name in the absence of compliance accordance with the terms of such legendlegends: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, amended (the "Act") or under any state securities laws and may not be sold, pledged, transferred, assigned or otherwise disposed of except in accordance with such Act and the rules and regulations thereunder and in accordance with applicable state securities laws. The , and may be offered, sold or otherwise transferred only if so registered under the Act and applicable state securities laws or if the holder has delivered to the Company will transfer such securities only upon receipt an opinion of evidence counsel, which counsel and opinion shall be reasonably satisfactory to the Company, which may include that an opinion of counsel, that the registration provisions of such Act have been compiled with or that exemption from such registration is not required and that such transfer will not violate any applicable state securities lawsavailable."
(n) Subscriber is aware that the Company may offer and sell additional shares of common stock in the future, thereby diluting Subscriber's percentage equity ownership of the Company.
Appears in 1 contract
Samples: Subscription Agreement (Communication Intelligence Corp)
Representations, Warranties and Agreements of Subscriber. The Subscriber hereby acknowledges, represents and warrants to the Company, on the date hereof and hereby covenants and agrees with on the CompanyClosing Date, as follows:
(a) a. The Subscriber has carefully read this Agreement and, to understands that the extent Subscriber believes necessary, has discussed with Subscriber's counsel offering and other professional advisor(s) the representations, warranties, covenants and agreements which Subscriber makes by signing it, and any applicable limitations upon Subscriber's transfer sale of the Shares issuable is intended to be exempt from registration under the Securities Act of 193 3, as amended (the "Act") by virtue of Section 4(2) of the Act and the provisions of Regulation D promulgated thereunder. , and in accordance therewith and in furtherance thereof, the Subscriber represents and warrants and agrees as follows:
b. The Subscriber and/or the Subscriber's adviser(s) has/have received and carefully reviewed this Subscription Agreement, including the attachment hereto entitled "Risk Factors" which is made a part hereof, and understands the information contained therein.
c. The Subscriber acknowledges that the Subscriber, or the Subscriber's attorney, accountant, or adviser(s), has/have had a reasonable opportunity to inspect all documents and records pertaining to this investment.
d. The Subscriber and/or the Subscriber's adviser(s) has/have had a reasonable opportunity to ask questions and receive answers from a person or persons acting on behalf of the Company concerning the offering of the Shares and all such questions have been answered to the full satisfaction of the Subscriber.
e. In making a decision to invest in the Shares, the Subscriber has not relied upon the legal counsel or accountants on any information other than information contained in this Agreement.
f. The Subscriber is not subscribing for the Company regarding Shares as a result of or subsequent to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by a person other than a representative of the transactions contemplated by this AgreementCompany.
g. If the Subscriber is a natural person, and the Subscriber has been advised to engage separate legal counsel and accountants to represent reached the age of majority in the jurisdiction in which the Subscriber resides; the Subscriber has adequate means of providing for the Subscriber's individual interest current financial needs and advise Subscriber regarding contingencies, is able to bear the structure ofsubstantial economic risks of an investment in the Shares for an indefinite period of time, and risks associated withhas no need for liquidity in such investment, and, at the present time, could afford a complete loss of such transactionsinvestment.
(b) h. The Subscriber understands that has such knowledge and experience in financial, tax and business matters so as a publicly traded company, to enable the Company files with Subscriber to utilize the Securities and Exchange Commission (the "SEC") various reports, including quarterly and annual financial statements, annual reports to shareholders, and proxy statements, and that all of such reports, statements and information are made available to the public, including Subscriber, from Subscriber to evaluate the SEC merits and directly from the Company. Subscriber acknowledges that the Company has delivered to Subscriber within a reasonable time prior to the execution risks of this Subscription Agreement a copy of the following: (i) a discussion of certain of the risks inherent in investing an investment in the Shares entitled "Risk Factors"; (ii) the Company's Form 10-K for the fiscal year ended December 31Shares, 1997; (iii) the Company's Form 10-Q for the fiscal quarter ended March 31, 1998; (iv) the Company's press releases since December 31, 1997; (v) the Company's Form 8-K filings since December 31, 1997; and (vi) such of the books and records of the Company and such other documents as Subscriber (and Subscriber's attorney, accountant and/or other advisors) deemed pertinent in order for Subscriber to make an informed investment decision (the documents identified in clauses (i) through (vi) herein are collectively referred to herein as the "Documents"). Subscriber further acknowledges that with respect thereto.
i. The Subscriber is entering into this Agreement solely not relying on the basis Company or any agent of information contained in the Documents and not on the basis of any information, representations or agreements made by any other person, and that no representations or warranties of any nature have been made to Subscriber Company with respect to the ultimate any legal, tax or economic consequences or tax consequences of Subscriber's investment in the Company. Subscriber acknowledges that any forecasted financial data which may have been given advice related to Subscriber is for illustration purposes only and no assurance is given that actual results will correspond with the results contemplated in any such data.
(c) Subscriber acknowledges that Subscriber has had the opportunity to ask questions of, and receive answers from, or obtain additional information from, the executive officers of the Company concerning the financial and other affairs of the Company, and, to the extent deemed necessary in light of Subscriber's personal knowledge of the Company's affairs, Subscriber has asked such questions and received satisfactory answers and desires to invest in the Company. Subscriber has been advised and acknowledges that no federal or state agency has made any finding or determination as to the fairness or merits of an investment in the Shares.
j. The Subscriber will not sell or otherwise transfer the Shares without registration under the Act and applicable state securities laws, or pursuant to an exemption therefrom. The Shares have not been registered under the Act or under the securities laws of any state and the Company will be under no obligation to so register the Shares. The Subscriber represents that the Subscriber is purchasing the Shares for the Subscriber's own account, for investment and not. with a view to resale or distribution except in compliance with the Act and applicable state securities laws. The Subscriber has no present intention to sell the Shares and the Subscriber has no present arrangement (whether or not legally binding) to sell the Shares to or through any person or entity; provided, however, that no such agency has made by making the representations herein, the Subscriber does not agree to hold the Shares for any recommendation minimum or endorsement whatsoever other specific term and reserves the right to dispose of the Shares at any time in accordance with respect Federal and state securities laws applicable to such an investmentdisposition.
(d) k. The Subscriber recognizes that investment in the Shares involves substantial risks, including the risk of, loss of the entire amount of such investment, and has taken full cognizance of and understands all of the risks related to the purchase of the Shares.
l. The Subscriber's overall commitment to investments that are not readily marketable is reasonable in relation to the Subscriber's net worth.
m. The Subscriber is an "accredited investor" as that term is defined in Rule 501 (a) of Regulation D promulgated under the Act as indicated by the SEC under responses to the Securities Act of 1933, as amended (Investor Questionnaire. The Subscriber further represents and warrants that the "Securities Act"). For this purpose, information furnished by the Subscriber in the Investor Questionnaire is accurate and complete in all material respects.
n. The Subscriber understands that an "accredited investor" includes:
(i) any individual who: (A) has the Shares are being offered and sold in reliance on a net worth (with spouse) in excess transactional exemption from the registration requirements of $1 million; or (B) has had an individual income in excess of $200,000 (or joint income with spouse in excess of $300,000) in each Federal and state securities laws and that the Company is relying upon the truth and accuracy of the two most recent years representations, warranties, agreements, acknowledgments and who reasonably expects understandings of the same income level Subscriber set forth in this Agreement in order to determine the applicability of such exemptions and the suitability of the Subscriber to acquire the Shares.
o. The Subscriber understands that there is no public trading market for the current year; or (C) who is an executive officer or director of the Company;
(ii) any entity in which all of the equity owners or partners are "accredited investors"; or
(iii) any corporation or partnership with total assets in excess of $5,000,000 Shares and none can be expected to develop, and that was not formed for the specific purpose of purchasing the securities subscribed hereunder.
(e) Subscriber considers himself/herself/itself to must be a sophisticated investor in companies similarly situated to held indefinitely unless registered under the Company, and Subscriber has substantial knowledge and experience in financial and business matters (including knowledge of finance, securities and investments, generally, and experience and skill in investments based on actual participation) such that Subscriber Act or an exemption from registration is capable of evaluating the merits and risks of the prospective investment in the Company.
(f) Subscriber's current address and, if Subscriber is an entity, Subscriber's state of incorporation or organization, are as set forth on the signature page hereofavailable. If Subscriber is an entity which does not meet the classification set forth under Section 1(d)(iii) above, each of Subscriber's equity owners and/or partners has the same state of residence as the Subscriber's state of organization and none of Subscriber's equity owners and/or partners has any present intention of moving from such state of residency.
(g) The Subscriber has been advised and acknowledges that the issuance or is aware of the Shares provisions of Rule 144 promulgated under the Act.
p. The Subscriber hereby agrees to provide such information and to execute and deliver such documents, as the Company may deem reasonably appropriate with regard to the Subscriber's suitability or otherwise in connection with this Agreement.
q. The execution, delivery and performance of this Agreement by the Subscriber (i) will not constitute a default under or conflict with any agreement or instrument to which the Subscriber is a party or by which it or its assets are bound, (H) will not conflict with or violate any order, judgment, decree, statute, ordinance or regulation applicable to the Subscriber (including, without limitation, any applicable laws relating to permissible legal investments) and (iii) does not require the consent of any person or entity, other than those that will have been obtained prior to the Closing Date.
r. This Agreement has been duly authorized, executed and delivered by the Subscriber and constitutes the valid and binding agreement of the Subscriber enforceable against it in accordance with its terms.
s. The Subscriber has not been registered under the Securities Act, in reliance upon the exemption(s) from registration promulgated thereunder. Subscriber also acknowledges that the issuance of the Shares has not be registered under the securities laws of any state. Consequently, Subscriber agrees that the Shares cannot be resold unless they are registered under the Securities Act (pursuant to Section 5.1 hereof or otherwise) and applicable state securities laws, or unless an exemption from such registration requirements is available. Subscriber has been advised and acknowledges that the Company is under no obligation to take any action necessary in order to make available any exemption for the transfer of the Shares without registration.
(h) Subscriber is purchasing the Shares solely for Subscriber's own account and not as nominee for, representative ofretained, or otherwise on behalf ofentered into any agreement or understanding with, any other person. Subscriber is purchasing the Shares with the intention of holding the Shares for investment, with no present intention of participating directly broker or indirectly finder in a subsequent public distribution of the Shares unless registered under the Securities Act and applicable state securities laws, or unless an exemption from such registration requirements is available. Subscriber shall not make any sale, transfer or other disposition of the Shares in violation of state or federal law.
(i) Subscriber has been advised that there is no assurance than an active market for the Shares will continue in the future. Subscriber is aware that Subscriber's investment in the Company is speculative and involves a high degree of risk of loss arising from, among other things, substantial market, operational, competitive and other risks, and, having made Subscriber's own evaluation of the risks associated with this investment, Subscriber is aware and Subscriber has been advised that Subscriber must bear the economic risks of a purchase of the Shares indefinitely.
(j) Subscriber acknowledges that the Shares were not offered to Subscriber by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media, or broadcast over television or radio, or (ii) any seminar or meeting to which Subscriber was invited by any of the foregoing means of communication.
(k) Subscriber understands and agrees that the Company, and all current and further shareholders of the Company, are relying on the agreements and representations contained herein.
(l) In connection with the purchase of the Shares by the Subscriber, Subscriber has not and the Company will not payincur any liability for any fee, and has no knowledge of the payment of, any commission or other direct compensation on account of any such retention, agreement or indirect remuneration understanding by the Subscriber.
t. The Subscriber understands, acknowledges and agrees that in making an investment decision, the Subscriber has relied solely on the Subscriber's own examination of the Company, including the merits and risks involved. The Shares have not been recommended by any federal or state securities commission or regulatory authority. Furthermore, the foregoing authorities have not confirmed the accuracy or determined the adequacy of this Agreement.
u. The Subscriber, if executing this Agreement in a representative or fiduciary capacity, has all requisite power and authority to any person execute and deliver this Agreement in such capacity and on behalf of the subscribing individual, xxxx, partnership, trust, estate, corporation, or other entity for soliciting whom the Subscriber is executing this Agreement, and such individual, xxxx, partnership, trust, estate, corporation, or otherwise coordinating other entity has all requisite power and authority to enter into this Agreement and make an investment in the Shares.
v. The representations, warranties, and agreements of the Subscriber contained in this Agreement shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date and shall survive the execution and delivery of this Agreement and the purchase of the Shares, except to such persons or entities (including the Placement Agent) as are duly licensed and/or registered to engage in securities offering and selling activities (or are exempt from such licensing and/or registration requirements) in the state(s) in which such activities have taken place in connection with the transaction contemplated by this Agreement.
(m) Subscriber has been advised and agrees that there will be placed on any w. For as long as is required by applicable laws, the certificates representing the Shares, or any substitution(s) thereof, Shares shall bear a legend stating in substance substantially the following (and including form, together with any restrictions or conditions that may be legend required by any applicable state law)laws, and the Subscriber has been advised and further agrees that the Company will refuse to permit the shall not transfer any or all of the Shares out of Subscriber's name or any interests therein, except in the absence of compliance accordance with the terms of such legendlegends: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, amended (the "Act") or under any state securities laws and may not be sold, pledged, transferred, assigned or otherwise disposed of except in accordance with such Act and the rules and regulations thereunder and in accordance with applicable state securities laws. The , and may be offered, sold or otherwise transferred only if so registered under the Act and applicable state securities laws or if the holder has delivered to the Company will transfer such securities only upon receipt an opinion of evidence counsel, which counsel and opinion shall be reasonably satisfactory to the Company, which may include that an opinion of counsel, that the registration provisions of such Act have been compiled with or that exemption from such registration is not required and that such transfer will not violate any applicable state securities lawsavailable."
(n) Subscriber is aware that the Company may offer and sell additional shares of common stock in the future, thereby diluting Subscriber's percentage equity ownership of the Company.
Appears in 1 contract
Representations, Warranties and Agreements of Subscriber. The Subscriber hereby acknowledges, represents and warrants to the Company, and hereby covenants and agrees with the Company, Company as follows:
(a) The Subscriber has carefully read this Agreement and, to is purchasing the extent Subscriber believes necessary, has discussed with Subscriber's counsel and other professional advisor(sUnit(s) the representations, warranties, covenants and agreements which Subscriber makes by signing it, and any applicable limitations upon Subscriber's transfer of the Shares issuable thereunder. Subscriber acknowledges that Subscriber has not relied upon the legal counsel or accountants for the Company regarding Subscriber’s own account for investment purposes only and not with the transactions contemplated by this Agreement, and Subscriber has been advised to engage separate legal counsel and accountants to represent Subscriber's individual interest and advise Subscriber regarding intent toward the structure of, and risks associated with, such transactionsfurther sale or distribution thereof.
(b) The Subscriber understands acknowledges and agrees that as a publicly traded companythe Units have not been registered under the Act and may not be transferred, the Company files sold, assigned, hypothecated or otherwise disposed of, unless made in accordance with the Securities Operating Agreement.
(c) The Subscriber has reached the age of majority in the jurisdiction in which the Subscriber resides; the Subscriber has adequate means of providing for the Subscriber’s current financial needs and Exchange Commission (contingencies, is able to bear the "SEC"substantial economic risks of an investment in the Unit(s) various reportsfor an indefinite period of time, including quarterly and annual financial statementshas no need for liquidity in such investment, annual reports to shareholdersand, and proxy statementsat the present time, and that all can afford a complete loss of such reports, statements investment.
(d) The purchase of the Unit(s) involves a high degree of risk and information are available to the public, including Subscriber, from the SEC and directly from the Company. Subscriber acknowledges that the Company Subscriber can bear the complete economic risk of the purchase of the Unit(s), including the total loss of the investment represented hereby.
(e) The Subscriber has delivered such knowledge and experience in financial, tax and business matters so as to enable the Subscriber within a reasonable time prior to utilize the information made available to the execution Subscriber in connection herewith to evaluate the merits and risks of this Subscription Agreement a copy of the following: (i) a discussion of certain of the risks inherent in investing in the Shares entitled "Risk Factors"; (ii) the Company's Form 10-K for the fiscal year ended December 31, 1997; (iii) the Company's Form 10-Q for the fiscal quarter ended March 31, 1998; (iv) the Company's press releases since December 31, 1997; (v) the Company's Form 8-K filings since December 31, 1997; investment and (vi) such of the books and records of the Company and such other documents as Subscriber (and Subscriber's attorney, accountant and/or other advisors) deemed pertinent in order for Subscriber to make an informed investment decision (the documents identified in clauses (i) through (vi) herein are collectively referred to herein as the "Documents"). Subscriber further acknowledges that Subscriber is entering into this Agreement solely on the basis of information contained in the Documents and not on the basis of any information, representations or agreements made by any other person, and that no representations or warranties of any nature have been made to Subscriber with respect to the ultimate economic consequences or tax consequences of Subscriber's investment in the Company. Subscriber acknowledges that any forecasted financial data which may have been given to Subscriber is for illustration purposes only and no assurance is given that actual results will correspond with the results contemplated in any such datathereto.
(cf) The Subscriber, or the Subscriber’s attorney, accountant, or adviser(s), has/have had a reasonable opportunity to inspect all documents and records pertaining to this subscription for the Unit(s).
(g) The Subscriber acknowledges that Subscriber has and/or the Subscriber’s attorney, accountant, or adviser(s) has/have had the a reasonable opportunity to ask questions of, and receive answers from, or obtain additional information from, from the executive officers Managing Member and other persons acting on behalf of the Company concerning the financial subscription for the Unit(s) and other affairs all such questions have been answered to the full satisfaction of the Company, and, to the extent deemed necessary in light of Subscriber's personal knowledge of the Company's affairs, Subscriber has asked such questions and received satisfactory answers and desires to invest in the Company. Subscriber has been advised and acknowledges that no federal or state agency has made any finding or determination as to the fairness or merits of an investment in the Company and that no such agency has made any recommendation or endorsement whatsoever with respect to such an investment.
(d) Subscriber is an "accredited investor" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Securities Act of 1933, as amended (the "Securities Act"). For this purpose, Subscriber understands that an "accredited investor" includes:
(i) any individual who: (A) has a net worth (with spouse) in excess of $1 million; or (B) has had an individual income in excess of $200,000 (or joint income with spouse in excess of $300,000) in each of the two most recent years and who reasonably expects the same income level for the current year; or (C) who is an executive officer or director of the Company;
(ii) any entity in which all of the equity owners or partners are "accredited investors"; or
(iii) any corporation or partnership with total assets in excess of $5,000,000 that was not formed for the specific purpose of purchasing the securities subscribed hereunder.
(e) Subscriber considers himself/herself/itself to be a sophisticated investor in companies similarly situated to the Company, and Subscriber has substantial knowledge and experience in financial and business matters (including knowledge of finance, securities and investments, generally, and experience and skill in investments based on actual participation) such that Subscriber is capable of evaluating the merits and risks of the prospective investment in the Company.
(f) Subscriber's current address and, if Subscriber is an entity, Subscriber's state of incorporation or organization, are as set forth on the signature page hereof. If Subscriber is an entity which does not meet the classification set forth under Section 1(d)(iii) above, each of Subscriber's equity owners and/or partners has the same state of residence as the Subscriber's state of organization and none of Subscriber's equity owners and/or partners has any present intention of moving from such state of residency.
(g) Subscriber has been advised and acknowledges that the issuance of the Shares has not been registered under the Securities Act, in reliance upon the exemption(s) from registration promulgated thereunder. Subscriber also acknowledges that the issuance of the Shares has not be registered under the securities laws of any state. Consequently, Subscriber agrees that the Shares cannot be resold unless they are registered under the Securities Act (pursuant to Section 5.1 hereof or otherwise) and applicable state securities laws, or unless an exemption from such registration requirements is available. Subscriber has been advised and acknowledges that the Company is under no obligation to take any action necessary in order to make available any exemption for the transfer of the Shares without registration.
(h) The Subscriber is purchasing not relying on the Shares solely for Subscriber's own account and not as nominee forCompany or any representative or agent thereof with respect to any legal, representative of, tax or otherwise on behalf of, any other person. Subscriber is purchasing economic advice related to an investment in the Shares with the intention of holding the Shares for investment, with no present intention of participating directly or indirectly in a subsequent public distribution of the Shares unless registered under the Securities Act and applicable state securities laws, or unless an exemption from such registration requirements is available. Subscriber shall not make any sale, transfer or other disposition of the Shares in violation of state or federal lawUnit(s).
(i) The Subscriber has been advised that there is no assurance than an active market not subscribing for the Shares will continue in the future. Subscriber is aware that Subscriber's investment in the Company is speculative and involves Unit(s) as a high degree result of risk of loss arising from, among other things, substantial market, operational, competitive and other risks, and, having made Subscriber's own evaluation of the risks associated with this investment, Subscriber is aware and Subscriber has been advised that Subscriber must bear the economic risks of a purchase of the Shares indefinitely.
(j) Subscriber acknowledges that the Shares were not offered or subsequent to Subscriber by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine magazine, or similar media, media or broadcast over television or radio, or (ii) presented at any seminar or meeting meeting, or any solicitation of a subscription by a person other than a representative of the Company. Subscriber is acquiring the Unit(s) for his or her own account, for investment purposes only and not with a view to the resale or distribution thereof.
(j) If at any time the Company determines to issue certificates evidencing the Units, such certificates may bear any legend required by the laws of the jurisdiction in which the Subscriber was invited resides, and any legend required by any of the foregoing means of communicationapplicable law.
(k) The Subscriber understands hereby agrees to provide such information and agrees that to execute and deliver such documents as the Company, and all current and further shareholders of Company may deem reasonably appropriate with regard to the Company, are relying on the agreements and representations contained hereinSubscriber’s suitability or otherwise in connection with this Agreement.
(l) In The execution, delivery and performance of this Agreement by the Subscriber: (i) will not constitute a default under or conflict with any agreement or instrument to which the Subscriber is a party; (ii) will not conflict with or violate any order, judgment, decree, statute, ordinance or regulation applicable to the Subscriber (including, without limitation, any applicable laws relating to permissible legal investments); and (iii) except as set forth herein, does not require the consent of any person or entity, other than those that have been obtained prior to the date hereof. This Agreement has been duly authorized, executed and delivered by the Subscriber and constitutes the valid and binding agreement of the Subscriber enforceable against him or her in accordance with its terms.
(m) The Subscriber has not retained, or otherwise entered into any agreement or understanding with, any broker or finder in connection with the purchase of the Shares Unit(s) by the Subscriber, Subscriber has not and the Company will not payincur any liability for any fee, and has no knowledge of the payment of, any commission or other direct compensation on account of any such retention, agreement or indirect remuneration to understanding by the Subscriber.
(n) The Subscriber understands, acknowledges and agrees that (i) the Units have not been recommended by any person federal or entity for soliciting state securities commission or otherwise coordinating regulatory authority and (ii) the representations, warranties, and agreements of the Subscriber contained in this Agreement shall survive the execution and delivery of this Agreement and the purchase of the Shares, except to such persons or entities (including the Placement Agent) as are duly licensed and/or registered to engage in securities offering and selling activities (or are exempt from such licensing and/or registration requirements) in the state(s) in which such activities have taken place in connection with the transaction contemplated by this AgreementUnit(s).
(m) Subscriber has been advised and agrees that there will be placed on any certificates representing the Shares, or any substitution(s) thereof, a legend stating in substance the following (and including any restrictions or conditions that may be required by any applicable state law), and Subscriber has been advised and further agrees that the Company will refuse to permit the transfer of the Shares out of Subscriber's name in the absence of compliance with the terms of such legend: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, or under any state securities laws and may not be sold, pledged, transferred, assigned or otherwise disposed of except in accordance with such Act and the rules and regulations thereunder and in accordance with applicable state securities laws. The Company will transfer such securities only upon receipt of evidence satisfactory to the Company, which may include an opinion of counsel, that the registration provisions of such Act have been compiled with or that such registration is not required and that such transfer will not violate any applicable state securities laws."
(n) Subscriber is aware that the Company may offer and sell additional shares of common stock in the future, thereby diluting Subscriber's percentage equity ownership of the Company.
Appears in 1 contract
Samples: Subscription Agreement
Representations, Warranties and Agreements of Subscriber. Subscriber hereby represents and warrants to the Company, and hereby covenants and agrees with the Company, Company as follows:
(a) Subscriber has carefully read this Agreement and, to the extent Subscriber believes necessary, has discussed with Subscriber's counsel and other professional advisor(s) the representations, warranties, covenants and agreements which Subscriber makes by signing it, and any applicable limitations upon Subscriber's transfer of the Shares issuable thereunder. Subscriber acknowledges that Subscriber has not relied upon the legal counsel or accountants for the Company regarding the transactions contemplated by this Agreement, and Subscriber has been advised to engage separate legal counsel and accountants to represent Subscriber's individual interest and advise Subscriber regarding the structure of, and risks associated with, such transactions.
(b) Subscriber understands that as a publicly traded company, the Company files with the Securities and Exchange Commission (the "SEC") various reports, including quarterly and annual financial statements, annual reports to shareholders, and proxy statements, and that all of such reports, statements and information are available to the public, including Subscriber, from the SEC and directly from the Company. Subscriber acknowledges that the Company has delivered to Subscriber within a reasonable time prior to the execution of this Subscription Agreement a copy of the following: (i) a discussion of certain Confidential Offering Memorandum prepared by the Company containing, among other things, brief descriptions of the risks inherent in investing securities being offered and use of the proceeds from the offering and certain risk factors associated with an investment in the Shares entitled "Risk Factors"Shares; (ii) the Company's Form 10-K for the fiscal year ended December 3110SB filed on April 29, 19971998; (iii) the Company's Form 10-Q for the fiscal quarter ended March 31, 1998; (iv) the Company's press releases since December 31, 1997; and (v) the Company's Form 8-K filings since December 31, 1997; and (vi) such of the books and records of the Company and such other documents as Subscriber (and Subscriber's attorney, accountant and/or other advisors) deemed pertinent in order for Subscriber to make an informed investment decision (the documents identified in clauses (i) through (viv) herein are collectively referred to herein as the "Documents"). Subscriber further acknowledges that Subscriber is entering into this Agreement solely on the basis of information contained in the Documents and not on the basis of any information, representations or agreements made by any other person, and that no representations or warranties of any nature have been made to Subscriber with respect to the ultimate economic consequences or tax consequences of Subscriber's investment in the Company. Subscriber acknowledges that any forecasted financial data which may have been given to Subscriber is for illustration purposes only and no assurance is given that actual results will correspond with the results contemplated in any such data.
(c) Subscriber acknowledges that Subscriber has had the opportunity to ask questions of, and receive answers from, or obtain additional information from, the executive officers of the Company concerning the financial and other affairs of the Company, and, to the extent deemed necessary in light of Subscriber's personal knowledge of the Company's affairs, Subscriber has asked such questions and received satisfactory answers and desires to invest in the Company. Subscriber has been advised and acknowledges that no federal or state agency has made any finding or determination as to the fairness or merits of an investment in the Company and that no such agency has made any recommendation or endorsement whatsoever with respect to such an investment.
(d) Subscriber is an "accredited investor" as that term is defined in Rule 501 of Regulation D promulgated by the SEC under the Securities Act of 1933, as amended (the "Securities Act"). For this purpose, Subscriber understands that an "accredited investor" includes:
(i) any individual who: (A) has a net worth (with spouse) in excess of $1 million; or (B) has had an individual income in excess of $200,000 (or joint income with spouse in excess of $300,000) in each of the two most recent years and who reasonably expects the same income level for the current year; or (C) who is an executive officer or director of the Company;
(ii) any entity in which all of the equity owners or partners are "accredited investors"; : or
(iii) any corporation or partnership with total assets in excess of $5,000,000 that was not formed for the specific purpose of purchasing the securities subscribed hereunder.
(e) Subscriber considers himself/herself/itself to be a sophisticated investor in companies similarly situated to the Company, and Subscriber has substantial knowledge and experience in financial and business matters (including knowledge of finance, securities and investments, generally, and experience and skill in investments based on actual participation) such that Subscriber is capable of evaluating the merits and risks of the prospective investment in the Company.
(f) Subscriber's current address and, if Subscriber is an entity, Subscriber's state of incorporation or organization, are as set forth on the signature page hereof. If Subscriber is an entity which does not meet the classification set forth under Section 1(d)(iii) above, each of Subscriber's equity owners and/or partners has the same state of residence as the Subscriber's state of organization and none of Subscriber's equity owners and/or partners has any present intention of moving from such state of residency.
(g) Subscriber has been advised and acknowledges that the issuance of the Shares has will not been be registered under the Securities Act, in reliance upon the exemption(s) from registration promulgated thereunder. , and, therefore, are "restricted securities." Subscriber also acknowledges that the issuance of the Shares has will not be registered under the securities laws of any state. Consequently, Subscriber agrees that the Shares cannot be resold unless they are registered under the Securities Act (pursuant to Section 5.1 hereof or otherwise) and applicable state securities laws, or unless an exemption from such registration requirements is available. Subscriber has been advised and acknowledges that the Company is under no obligation to take any action necessary in order to make available any exemption for the transfer of the Shares without registration.
(h) Subscriber is purchasing the Shares solely for Subscriber's own account and not as nominee for, representative of, or otherwise on behalf of, any other person. Subscriber is purchasing the Shares with the intention of holding the Shares for investment, with no present intention of participating directly or indirectly in a subsequent public distribution of the Shares unless registered under the Securities Act and applicable state securities laws, or unless an exemption from such registration requirements is available. Subscriber shall not make any sale, transfer or other disposition of the Shares in violation of state or federal law.
(i) Subscriber has been advised that there is no assurance than an active market for the Shares will continue in the future. Subscriber is aware that Subscriber's investment in the Company is speculative and involves a high degree of risk of loss arising from, among other things, substantial market, operational, competitive and other risks, and, having made Subscriber's own evaluation of the risks associated with this investment, Subscriber is aware and Subscriber has been advised that Subscriber must bear the economic risks of a purchase of the Shares indefinitely.
(j) Subscriber acknowledges that the Shares were not offered to Subscriber by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media, or broadcast over television or radio, or (ii) any seminar or meeting to which Subscriber was invited by any of the foregoing means of communication.
(k) Subscriber understands and agrees that the Company, and all current and further shareholders stockholders of the Company, are relying on the agreements and representations contained herein.
(l) In connection with the purchase of the Shares by Subscriber, Subscriber has not and will not pay, and has no knowledge of the payment of, any commission or other direct or indirect remuneration renumeration to any person or entity for soliciting or otherwise coordinating the purchase of the Shares, except to such persons or entities (including the Placement Agent) as are duly licensed and/or registered to engage in securities offering and selling activities (or are exempt from such licensing and/or registration requirements) in the state(s) in which such activities have taken place in connection with the transaction contemplated by this Agreement.
(m) Subscriber has been advised and agrees that there will be placed on any certificates representing the Shares, or any substitution(s) thereof, a legend stating in substance the following (and including any restrictions or conditions that may be required by any applicable state law), and Subscriber has been advised and further agrees that the Company will refuse to permit the transfer of the Shares out of Subscriber's name in the absence of compliance with the terms of such legend: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, or under any state securities laws and may not be sold, pledged, transferred, assigned or otherwise disposed of except in accordance with such Act and the rules and regulations thereunder and in accordance with applicable state securities laws. The Company will transfer such securities only upon receipt of evidence satisfactory to the Company, which may include an opinion of counsel, that the registration provisions of such Act have been compiled with or that such registration is not required and that such transfer will not violate any applicable state securities laws."
(n) Subscriber is aware that the Company may offer and sell additional shares of common stock in the future, thereby diluting Subscriber's percentage equity ownership of the Company.
Appears in 1 contract
