Representations, Warranties and Covenants of the Investor. 5.1. The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time. 5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense. 5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. 5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable. 5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares. 5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares. 5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 4 contracts
Samples: Stock Purchase Agreement (Transtechnology Corp), Stock Purchase Agreement (Tinicum Capital Partners Ii Lp), Stock Purchase Agreement (Transtechnology Corp)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the SharesShares and Warrants, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as and Warrants set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty documents incorporated by such Investor to hold the Shares for any period of timereference therein.
5.2. The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the SharesShares and Warrants, or possession or distribution of offering materials in connection with the issue of the Shares, Securities in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with and Warrants, except as set forth or incorporated by reference in the provisions of this Agreement and Base Prospectus, the Registration Rights Agreement and without complying with Prospectus Supplement or any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithfree writing prospectus.
5.4. 4.3 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesShares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
5.7. 4.5 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than those specifically its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Sections 5Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, 6 for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and 16(a(2) a warrant to purchase a number of this Agreement, or shares equal to 8% of the Shares issued to such subscribers in the Confidentiality Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement (or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as defined below)a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, Xxxxxx X. Xxxxxxxxxxx, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that Xx. Xxxxxxxxxxx failed to adequately supervise employees at a prior broker-dealer.
Appears in 4 contracts
Samples: Subscription Agreement (CytoDyn Inc.), Subscription Agreement (CytoDyn Inc.), Subscription Agreement (CytoDyn Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents Documents, the Press Releases and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and without causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement), and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.5 Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws laws.
5.6 The Investor understands that nothing in the holding Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. 5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5, 6 5 and 16(a) of this Agreement), in the Stock Purchase Agreement or in the Confidentiality Agreement (as defined below)Investor Questionnaire.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Rita Medical Systems Inc), Stock Purchase Agreement (Rita Medical Systems Inc), Stock Purchase Agreement (Rita Medical Systems Inc)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the SharesUnits, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as Units set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations documents incorporated by reference therein and warranties of the Company contained herein. Offering Information.
(a) The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees acknowledges that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the Shares, Securities in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Units, except as set forth or incorporated by reference in the provisions of this Agreement and Base Prospectus or the Registration Rights Agreement and without complying with Prospectus Supplement or any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithIssuer Free Writing Prospectus.
5.4. (a) The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package, the Offering Information or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesUnits. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing the Warrants on any securities exchange. Without an active market, the liquidity of the Warrants will be limited.
5.74.5 Since the date on which the Placement Agent first contacted the Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors that are subject to an obligation of confidentiality) and has not engaged in any transactions involving the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities). The Investor covenants that it will not engage in any transactions involving the securities of the Company acknowledges (including Short Sales) or disclose any information about the Offering (other than to its legal, accounting and other advisors that are subject to an obligation of confidentiality) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, (but shall not be deemed to include the location and/or reservation borrowable shares of Common Stock).
4.6 The Investor is acquiring the Securities for its own account, not as a nominee or agent; provided, however, that by making the representations herein, the Investor does not make agree to hold any of the Securities for any minimum or has other specific term and reserves the right to resell or otherwise dispose of the Securities at any time, subject to compliance with applicable federal or state securities laws, rules or regulations. The Investor is acquiring the Securities hereunder in the ordinary course of its business and does not made presently have any representations agreement or warranties understanding, directly or indirectly, with respect any third party to the transactions contemplated hereby other than those specifically set forth in Sections 5acquire, 6 and 16(a) of this Agreementsell, transfer, or in distribute any of the Confidentiality Agreement (as defined below)Securities.
Appears in 4 contracts
Samples: Subscription Agreement (Quicklogic Corporation), Subscription Agreement (Novatel Wireless Inc), Subscription Agreement (Quicklogic Corporation)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesSecurities; (ii) the Investor is acquiring the number of Shares, each as Common Shares and Warrants set forth in Section 3 Paragraph III of the Stock Securities Purchase Agreement in the ordinary course of its his business and for its his own account for investment only and with no present intention of distributing any of such Shares, the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; and (ivv) the Investor has, in connection with its his decision to purchase the number of Common Shares as and Warrants set forth in Section 3 Paragraph III of the Stock Securities Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its neither this Offering nor the acquisition of the Shares has not Securities have been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws herein and the respective rules information provided in the Investor’s Investor Questionnaire. Investor has completed or caused to be completed and regulations promulgated thereunderdelivered to the Company the Investor Questionnaire, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timewhich questionnaire is true, correct and complete in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement have been duly authorized by all necessary action on the part of the Investor. This Agreement has been duly executed by the Investor, and (ii) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor him in accordance with its terms, except (i) as enforceability may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' ’ rights generally, (ii) as limited by rules of law governing specific performance, injunctive relief, or other equitable remedies and contracting parties' rights generally and except as enforceability (iii) to the extent the indemnification provisions contained in this Agreement may be subject limited by applicable federal or state securities laws.
5.3 The Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is acquiring the Common Shares and Warrants, and the Warrant shares receivable upon exercise thereof, in each case, for his own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof; provided, however, that by making the representations herein, the Investor does not agree to general principles hold any of equity (regardless the Securities for any minimum or other specific term and reserves the right to dispose of whether such enforceability the Securities under an exemption under the Securities Act and reserves the right to dispose of the Common Shares and Warrant Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. The Investor is considered acquiring the Securities hereunder in a proceeding the ordinary course of business.
5.5 The Investor understands that the Securities are being offered and sold to him in equity or at law) reliance on specific exemptions from the registration requirements of United States federal and except as state securities laws and that the indemnification agreements Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein may be legally unenforceablein order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. 5.6 The Investor will not use any of and his advisors, if any, have been furnished with all publicly available materials relating to the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock business, finances and operations of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in such other publicly available materials relating to the holding offer and sale of the Shares.
5.6Securities as have been requested by the Investor. The Investor has consulted and his advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such legalinquiries nor any other due diligence investigations conducted by the Investor or his advisors, tax if any, or his representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained herein. The Investor understands that his investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase the Securities involves a high degree of Sharesrisk.
5.7. 5.7 The Company acknowledges and agrees Investor understands that Investor does not make no United States federal or state agency or any other government or governmental agency has not passed on or made any representations recommendation or warranties with respect to endorsement of the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) Securities or the fairness or suitability of this Agreement, or the investment in the Confidentiality Agreement (as defined below)Securities, nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
Appears in 3 contracts
Samples: Securities Purchase Agreement (nFinanSe Inc.), Securities Purchase Agreement (nFinanSe Inc.), Securities Purchase Agreement (nFinanSe Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and signature page hereto for its own account for investment only and with no present intention of distributing any of such Shares, Shares in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents SEC Documents, other publicly available information and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 5.2 The Investor acknowledges, represents and agrees acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and Agreement, including Section 7.2 hereof, provided that the Registration Rights Agreement and Company complies with its obligations under Section 7.1, without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus (as defined in Exhibit A) forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither 5.5 Investor will not, prior to the effectiveness of the Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a “Disposition”) the Shares in violation of the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Shares by the Investor nor or any other person acting on its behalf or at its direction entity in violation of the Securities Act.
5.6 Between the time such Investor learned about the Offering and the public announcement of the Offering, such Investor has engaged in not taken, and prior to the public announcement of the Offering will not take, any purchase action that has caused or sale will cause such Investor to have, directly or indirectly, sold or agreed to sell any shares of Common Stock (including without limitation Stock, effected any short sale), pledgewhether or not against the box, transfer, establishment of an open "established any “put equivalent position" within the meaning of ” (as defined in Rule 16a-1(h) under the Securities Exchange ActAct of 1934, as amended) during with respect to the thirty Common Stock, granted any other right (30including, without limitation, any put or call option) trading days immediately preceding with respect to the date Common Stock or with respect to any security that includes, relates to or derived any significant part of this Agreement its value from the Common Stock, whether or otherwise has engaged or will engagenot, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant order to this Agreement to cover any short hedge its position in the Common Stock of the Company if doing so would be Shares, nor has such Investor, directly or indirectly, caused any person to engaged in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary any short sales or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties similar transactions with respect to the Common Stock.
5.7 The Investor further represents that no broker, investment banker, financial advisor or other person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) based upon arrangements made by or on behalf of this Agreement, or in the Confidentiality Agreement (as defined below)Investor.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Conceptus Inc), Stock Purchase Agreement (Conceptus Inc), Stock Purchase Agreement (Conceptus Inc)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants (as of the date hereof) to, and covenants agrees with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act Sellers and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares Units presenting an investment decision like that involved in the purchase of the SharesUnits, including investments in securities issued by the Company and investments in comparable companies, (b) is an “accredited investor” within the meaning of Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended, (c) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivd) the Investor has, in connection with its decision to purchase the number of Shares as Units set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations documents incorporated by reference therein and warranties the Offering Information and the representations, warranties, covenants and agreements of the Company contained herein. The Investor understands that its acquisition of in the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timePlacement Agency Agreement.
5.2. The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the SharesUnits, or possession or distribution of offering materials in connection with the issue of the Shares, Units in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Units or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants expense and (c) the Placement Agent is not authorized to make nor has made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Units, except as set forth or incorporated by reference in the provisions of this Agreement and Preliminary Prospectus, any Issuer Free Writing Prospectus or the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithFinal Prospectus.
5.4. (a) The Investor further represents is either an individual or an entity duly organized, validly existing and warrants to, in good standing under the laws of the jurisdiction of its organization and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation). The Investor’s execution, delivery and performance of this Agreement and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Investor’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Investor is subject (including federal and state securities laws and regulations), or by which any property or asset of the Investor herein may be legally unenforceableis bound or affected.
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesUnits.
5.74.5 If the Investor has previously received any material non-public information since the time at which the Placement Agent first contacted the Investor about the Offering, the Investor has not disclosed any of such material non-public information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any transactions involving the securities of the Company (including, without limitation, any Short Sales (defined below) involving the Company’s securities). The Company acknowledges and agrees Investor covenants that Investor does not make or has not made any representations or warranties with respect to it will (i) maintain the confidentiality of all material non-public information acquired as a result of the transactions contemplated hereby other than those specifically set forth herein and (ii) not engage in Sections 5any purchases or sales of the securities of the Company (including Short Sales), 6 and 16(a) in each case prior to the time that such material non-public information is publicly disclosed. The Investor agrees that it will not use any of the Units acquired pursuant to this Agreement, or Agreement to cover any short position in the Confidentiality Agreement Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined belowin Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.6 Investor acknowledges that a portion of the identifying information set forth on the Signature Page is being requested in connection with the USA Patriot Act, Pub.L.107-56 (the “Patriot Act”), and Investor agrees to provide any additional information requested by the Sellers or the Placement Agent in connection with the Patriot Act or any similar legislation or regulation to which Sellers or the Placement Agent is subject, in a timely manner. Investor hereby represents that the identifying information set forth on the Signature Page, including without limitation, its Taxpayer Identification Number assigned by the Internal Revenue Service or any other taxing authority, is true and complete on the date hereof and will be true and complete at the time of the Closing.
Appears in 3 contracts
Samples: Subscription Agreement (GeoVax Labs, Inc.), Subscription Agreement (GeoVax Labs, Inc.), Subscription Agreement (GeoVax Labs, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor hereby represents and warrants toto and covenants with the Company (which representations, warranties and covenants shall be true and correct as of the date hereof and as of the subscription date of the Additional Shares, and covenants with, will survive the Company execution and delivery of this Subscription Agreement) that: :
(i) the Investor is an "accredited investor" as defined in Regulation D under has the Securities Act legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Investor is also knowledgeablea corporation, sophisticated it is duly incorporated and experienced in makingvalidly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and is qualified others have been obtained to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase authorize execution and performance of this Subscription Agreement on behalf of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; Investor;
(ii) the Investor is acquiring entering into this Subscription Agreement and the number transactions contemplated hereby do not result in the violation of Shares, each as set forth in Section 3 any of the Stock Purchase Agreement in the ordinary course terms and provisions of its business and for its own account for investment only and with no present intention of distributing any of such Shareslaw applicable to, or the corporate documents of, the Investor or of any arrangement agreement, written or understanding with any other persons regarding oral, to which the distribution of such Shares; Investor may be a party or by which the Investor is or may be bound;
(iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance with the Securities Act, applicable state securities laws has duly executed and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of delivered this Subscription Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement it constitutes a valid and binding obligation agreement of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity Investor;
(regardless of whether such enforceability is considered in a proceeding in equity or at lawiv) and except as the indemnification agreements of the Investor herein may be legally unenforceable.is not a U.S. Person, as that term is defined in Rule 902 of Regulation S under the Act;
5.5. Neither (v) the Investor nor any person acting on its behalf is not acquiring the Shares for the account or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engagebenefit of, directly or indirectly, any U.S. Person, as that term is defined in any action designed Rule 902 of Regulation S under the Act;
(vi) the Investor is resident of the jurisdiction set out under the heading “Name and Address of Investor” on the signature page of this Subscription Agreement;
(vii) the Investor is and will be outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Investor’s own account (except for the circumstances outlined in paragraph 5.1), for investment purposes only, and not with a view to, or which might be reasonably expected tofor, cause resale, distribution or result fractionalization thereof, in any manipulation of whole or in part, and no other person has a direct or indirect beneficial interest in the price of Shares;
(ix) the Common Stock. The Investor will is acquiring the Shares for investment only and not use with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the restricted Shares in the United States or to U.S. Persons;
(x) the Investor is not an underwriter of, or dealer in, the Shares of the Company, nor is the Investor participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(xi) the Investor:
(a) is able to fend for itself in connection with the offer and sale of Shares under this Subscription Agreement; and
(b) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Company’s Shares offered hereby; and
(c) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(xii) if the Investor is acquiring the Shares as a fiduciary or agent for one or more investor accounts, the Investor has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account, and the investor accounts, if any, for which the Investor acts as a fiduciary or agent satisfy the definition of an “Accredited Investor,” as the term is defined in Rule 501 of Regulation D under the Act;
(xiii) the Investor acknowledges that the Investor has not acquired the Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the Act) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares, provided, however, that the Investor may sell or otherwise dispose of any of the Shares pursuant to an effective registration statement under the Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(xiv) the Investor has not received nor is he aware of any advertisement or public solicitation pertaining to the offer or sale of any of the Shares; and
(xv) no person has made to the Investor any written or oral representations that:
(a) any person will resell or repurchase any of the Shares; and
(b) any person will refund the purchase price of any of the Shares paid by the Investor pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the SharesSubscription Agreement.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 3 contracts
Samples: Subscription Agreement (TechCare Corp.), Subscription Agreement (TechCare Corp.), Subscription Agreement (TechCare Corp.)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company and the Placement Agent that: :
4.1 The Investor (ia) is an entity that qualifies for an exemption from the requirements of the Company to qualify or register the offer and sale of the Securities to the Investor under any applicable state “blue-sky” or securities laws in the jurisdiction in which the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor deemed to reside, (b) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, (c) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivd) the Investor has, in connection with its decision to purchase the number of Shares as Securities set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws documents incorporated by reference therein and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timeOffering Information.
5.2. The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the Shares, Securities in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and Securities, except as set forth or incorporated by reference in the Registration Rights Agreement and without complying with Statement, Prospectus or any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithfree writing prospectus.
5.4. (a) The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package, the Offering Information or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesUnits. The Investor also understands that there is no established public trading market for the Pre-Funded Warrants or the Warrants, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Pre-Funded Warrants or the Warrants on any securities exchange. The Investor understands that without an active trading market, the liquidity of the Pre-Funded Warrants or the Warrants will be limited.
5.74.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first provided the material pricing terms of the Offering, the Investor has not disclosed any material pricing information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) from the time the Investor received material pricing information regarding the offering until the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor has been afforded, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the Offering and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. The Investor acknowledges and agrees that neither Rxxx nor any affiliate of Rxxx has provided such Investor does not make with any information or has not made any representations or warranties advice with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5Securities nor is such information or advice necessary or desired. Neither Rxxx nor any of its affiliates has made or makes any representation as to the Company or the quality of the Securities and Rxxx and any of its affiliate may have acquired non-public information with respect to the Company which such Investor agrees need not be provided to it. In connection with the issuance of the Securities to such Investor, 6 and 16(a) neither Rxxx nor any of this Agreement, its affiliates has acted as a financial advisor or in the Confidentiality Agreement (as defined below)fiduciary to such Investor.
Appears in 3 contracts
Samples: Subscription Agreement (Great Basin Scientific, Inc.), Subscription Agreement (Great Basin Scientific, Inc.), Subscription Agreement (Great Basin Scientific, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company and the Placement Agents that:
4.1 The Investor: (ia) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as Units set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws documents incorporated by reference therein and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timeOffering Information.
5.2. The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the SharesUnits, or possession or distribution of offering materials in connection with the issue of the Shares, Securities in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants expense and (c) the Placement Agents are not authorized to make and have not made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Securities, except as set forth or incorporated by reference in the provisions of this Agreement and Disclosure Package or the Registration Rights Agreement and without complying with Prospectus or any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithfree writing prospectus.
5.4. (a) The Investor further represents is either an individual or an entity duly organized, validly existing and warrants to, in good standing under the laws of the jurisdiction of its organization and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation). The Investor’s execution, delivery and performance of this Agreement and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Investor’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Investor is subject (including federal and state securities laws and regulations), or by which any property or asset of the Investor herein may be legally unenforceableis bound or affected.
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package, the Offering Information or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesUnits. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing the Warrants on any securities exchange or other trading market. Without an active market, the liquidity of the Warrants will be limited.
5.74.5 Since the date on which a Placement Agent first contacted the Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors who are bound by agreements or duties of confidentiality) and has not engaged in any purchases or sales involving the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales involving the securities of the Company acknowledges and agrees (including Short Sales) prior to the time that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement, or Agreement to cover any short position in the Confidentiality Agreement Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined belowin Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.
Appears in 3 contracts
Samples: Subscription Agreement (Lpath, Inc), Subscription Agreement (Lpath, Inc), Subscription Agreement (Lpath, Inc)
Representations, Warranties and Covenants of the Investor. 5.1To induce the Corporation to accept this subscription, the Investor represents, warrants and covenants as follows:
a) The Investor has been furnished and has carefully read the Memorandum relating to the offering of the Shares by the Corporation, including all the appendices thereto including a form of the Stockholders Agreement. The Investor represents is not relying upon any other information, representation or warranty by the Corporation or any agent of it in determining to invest in the Corporation. The Investor has consulted to the extent deemed appropriate by the Investor with the Investor’s own advisers as to the financial, tax, legal and warrants related matters concerning an investment in the Shares and on that basis believes that an investment in the Shares is suitable and appropriate for the Investor.
b) The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, is able to bear the economic risks and lack of liquidity of an investment in the Shares, is able to bear the risk of loss of its entire investment in the Shares and understands the risks of, and other considerations relating to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including the matters set forth under the caption “Risk Factors” in the Memorandum.
c) The Investor acknowledges that he/she/it has prior investment experience, including investment in non-listed and non-registered securities (including investments in securities issued limited partnerships), or the Investor has employed the services of an investment advisor, attorney or accountant to read all of the documents furnished or made available by the Company Corporation both to the Investor and investments to all other prospective investors in comparable companiesthe Shares and to evaluate the merits and risks of such an investment on the Investor’s behalf, and that the Investor recognizes the highly speculative nature of this investment.
d) The Investor acknowledges receipt and careful review of the Memorandum and hereby represents that the Investor has requestedbeen furnished by the Corporation, receivedto the extent commercially reasonable, reviewed and considered during the course of this transaction with all information it deemed relevant in making an informed decision to purchase regarding the Shares; (ii) Corporation which the Investor had requested or desired to know; that all documents which could be reasonably provided have been made available for the Investor’s inspection and review, and that the Investor has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Corporation concerning the terms and conditions of the offering, and any additional information requested.
e) The Investor understands that the Shares have not been registered under the Securities Act, the securities laws of any state thereof or the securities laws of any other jurisdiction, nor is acquiring such registration contemplated. The Investor understands and agrees further that the number of Shares, each as Shares must be held indefinitely and may be transferred only in accordance with the restrictions set forth in Section 3 of the Stock Purchase Agreement a legend substantially in the ordinary course form set forth below which will be placed on the certificate or certificates evidencing the Shares issued to the Investor at the Closing: THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDERS AGREEMENT, DATED EFFECTIVE AS OF [________________], A COPY OF WHICH IS AVAILABLE FOR EXAMINATION AT THE PRINCIPAL OFFICES OF FIVE STAR BANCORP, AND MAY NOT BE OFFERED, SOLD TRANSFERRED, HYPOTHECATED, PLEDGED, GIVEN OR OTHERWISE DISPOSED OF EXCEPT IN STRICT AND FULL ACCORDANCE WITH THE TERMS OF SUCH AGREEMENT.
f) The Investor is purchasing the Shares for the Investor’s own account, with the intention of its business and for its own account holding the Shares for investment only and with no present intention of distributing any dividing or allowing others to participate in this investment or of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer reselling or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engageparticipating, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation a distribution of the price Shares. The Shares to be acquired hereunder are being acquired by the Investor for investment purposes only and not with a view to resale or distribution.
g) To the full satisfaction of the Common StockInvestor, the Investor has been furnished any materials the Investor has requested relating to the Corporation, the offering of the Shares or any statement made in the Memorandum, and the Investor has been afforded the opportunity to ask questions of representatives of the Corporation concerning the Corporation and the terms and conditions of the offering, and to obtain any additional information necessary to verify the accuracy of the information set forth in the Memorandum and other information provided by the Corporation.
h) The attached Investor Questionnaire that the Investor has completed and all of the statements, answers and information therein are true and correct as of the date hereof and will be true and correct as of the date of the Closing. The Investor will not use any Questionnaire is incorporated herein by this reference.
i) The foregoing representations, warranties, and covenants and all other information which the Investor has provided concerning the Investor and the Investor’s financial condition are true and accurate as of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6date hereof. The Investor has consulted such legalagrees to immediately notify the Corporation if any information, tax representations, warranties, and investment advisors as itcovenants of the Investor contained in this Subscription Agreement, in its sole discretionincluding the Investor Questionnaire, has deemed necessary or appropriate in connection with its purchase of Sharesbecomes untrue prior to the Closing.
5.7. j) The Company acknowledges Investor (excluding an Investor who is a director or officer of the Corporation) hereby represents and agrees warrants that even though the Investor does not make is a shareholder of the Corporation, the Investor has no plan, agreement, arrangement or has not made understanding with the Corporation or any representations other shareholder of the Corporation regarding acquiring, holding, voting or warranties with respect to disposing of common stock of the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below)Corporation.
Appears in 2 contracts
Samples: Subscription Agreement (Five Star Bancorp), Subscription Agreement (Five Star Bancorp)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and signature page hereto for its own account for investment only and with no present intention of distributing any of such Shares, Shares in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents SEC Documents, other publicly available information and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 5.2 The Investor acknowledges, represents and agrees acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and Agreement, including Section 7.2 hereof, provided that the Registration Rights Agreement and Company complies with its obligations under Section 7.1, without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither 5.5 Investor will not, prior to the effectiveness of the Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a "Disposition") the Shares in violation of the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Shares by the Investor nor or any other person acting on its behalf or at its direction has engaged entity in any purchase or sale violation of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Securities Act) during the thirty (30) trading days immediately preceding the date of .
5.6 The Investor understands that nothing in this Agreement or otherwise has engaged or will engage, directly or indirectly, any other materials presented to the Investor in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of connection with the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Conceptus Inc), Stock Purchase Agreement (Conceptus Inc)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor hereby represents and warrants to, and covenants with, the Company and the Placement Agents, as of the date hereof and as of the Closing Date (except to the extent made only as of a specified date in which case as of such specified date), that: :
(i1) the The Investor is (a) an "“accredited investor" ” as such term is defined in rule 501 of Regulation D promulgated under the Securities Act, (b) aware that the sale of the Shares to it is being made in reliance on a private placement exemption from registration under the Securities Act, (c) acquiring the Shares for its own account or for the account over which it exercises sole investment discretion of a Qualified Institutional Buyer, or QIB, as defined in Regulation D Rule 144 promulgated under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers an institutional accredited investor) and not with a view to buy,distribution and (d) any of aware that hedging transactions involving the Shares except Company’s securities may not be conducted unless in compliance with the Securities Act.
(2) The Investor understands and agrees on behalf of itself and on behalf of any investor account for which it is purchasing Shares that the Shares and the Ordinary Shares issuable upon conversion of the Shares shall not be transferred unless in accordance with the Letter Agreement, that the Shares and the Ordinary Shares issuable upon conversion of the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that the issuance of the Shares and the Ordinary Shares issuable upon conversion of the Shares have not been and will not be as of the Closing registered under the Securities Act or any other applicable state securities laws and that (a) if it decides to offer, resell, pledge or otherwise transfer any of the respective rules Shares or the Ordinary Shares issuable upon conversion of the Shares, such Shares and regulations promulgated thereunder; and Ordinary Shares may be offered, resold, pledged or otherwise transferred only (i) to a person whom the seller reasonably believes is a QIB in a transaction meeting the requirements of Rule 144A, (ii) pursuant to an exemption from the registration requirements of the Securities Act, including the exemption provided by Rule 144 under the Securities Act (if available), (iii) pursuant to an effective registration statement under the Securities Act, or (iv) to the Company, or one of its subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities laws of any state of the United States, and that (b) the Investor hasshall notify any subsequent purchaser or potential subsequent purchaser of the Shares and the Ordinary Shares issuable upon conversion of the Shares from it of all transfer restrictions and other matters referred to above in this Section 5.1(2) and will provide the Company and its transfer agent such certificates and other information as they may reasonably require to confirm that any transfer by such Investor of any Shares and the Ordinary Shares issuable upon conversion of the Shares complies with the foregoing restrictions, if applicable. So long as the shares are in uncertificated form and registered directly on the share registry, the transfer agent will not permit transfers of such shares except in compliance with such restrictions.
(3) The Investor understands that the Shares will bear a legend in the form specified in the Amended and Restated Memorandum. The Investor understands that the Ordinary Shares issuable upon conversion of the Shares, unless sold in compliance with Rule 144 under the Securities Act or pursuant to the registration statement to be filed pursuant to the Registration Rights Agreement, will, if issued in certificated form, bear a legend substantially to the following effect:
(4) The Investor:
(a) is able to fend for itself in the transactions contemplated by this Agreement;
(b) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares;
(c) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment; and
(d) acknowledges that it is not acquiring the Shares as a result of any “general solicitation” or “general advertising” (within the meaning of Rule 502(c) under the Securities Act), including advertisements, articles, notices or other communications published in any newspaper, magazine, on a web site or in or on any similar media, or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising.
(5) The Investor acknowledges that (a) it has conducted its own investigation of the Company and the Shares and, in conducting its investigation, it has not relied on the Placement Agents or on any statements or other information provided by the Placement Agents concerning the Company or the terms of this offering, (b) it has had access to the Company’s filings made pursuant to the Exchange Act (the “Exchange Act Filings”) and such financial and other information as it has deemed necessary to make its decision to purchase the Shares, (c) has been offered the opportunity to ask questions of the Company and its auditors and received answers thereto, as it has deemed necessary in connection with its decision to purchase the number of Shares as set forth Shares, and (d) it will not hold the Placement Agents responsible for any statements in Section 3 of or omissions from any publicly available information, including the Stock Purchase Agreement, relied upon the Company’s Exchange Act Documents and the representations and warranties of the Company contained herein. Filings.
(6) The Investor understands that the Company, the Placement Agents and others will rely upon the truth and accuracy of the representations, acknowledgements and agreements contained herein and agrees that if any of the representations and acknowledgements deemed to have been made by it by its acquisition purchase of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other thingsis no longer accurate, the bona fide nature of Investor shall promptly notify the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws Company and the respective rules Placement Agents. If the Investor is acquiring Shares as a fiduciary or agent for one or more QIB investor accounts, it represents that it has sole investment discretion with respect to each such account, and regulations promulgated thereunderit has full power to make the foregoing representations, nothing contained herein shall be deemed a representation or warranty by acknowledgements and agreements on behalf of such Investor to hold the Shares for any period of timeaccount.
5.2. The Investor acknowledgesacknowledges that the Placement Agents and their respective directors, represents officers, employees, representatives and agrees controlling persons have no responsibility for making any independent investigation of the information provided as part of the due diligence process and make no representation or warranty to the Investor, express or implied, with respect to the Company or the Shares or the accuracy, completeness or adequacy of the information provided or any publicly available information, nor shall any of the foregoing persons be liable for any loss or damages of any kind resulting from the use of the information contained therein or otherwise supplied to the Investor.
5.3. The Investor acknowledges that no action has been or will be as of the Closing taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the SharesShares (including any filing of a registration statement), in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each The Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Neither the Investor hereby covenants with nor any other person acting on its behalf will, directly or indirectly, offer or sell any securities of the Company not same or similar classes as the Shares, or take any other action, so as to make any cause the offer and sale of the Shares without complying with to fail to be entitled to an exemption from the provisions registration requirements of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithSecurities Act.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this AgreementAgreement and the Ancillary Agreements. This Agreement has been, and at Closing, the Ancillary Agreements will be, duly and validly executed and delivered by the Investor and, assuming the due authorization, execution and delivery by the Investor, this Agreement constitutes, and (iias of the Closing) this Agreement constitutes each of the Ancillary Agreements will constitute, a valid valid, binding, and binding enforceable obligation of the Investor enforceable against the Investor in accordance with its termsInvestor, except as the enforceability of the Agreement or the Ancillary Agreements may be subject to or limited by applicable bankruptcy, insolvency, reorganization, moratorium or arrangement, moratorium, other similar laws relating to or affecting creditors' and contracting parties' the rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceablecreditors generally.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date The entry into and performance of this Agreement or otherwise has engaged or and the Ancillary Agreements by the Investor and the consummation by the Investor of the transactions contemplated hereby and thereby will engagenot (i) result in a violation of the organizational documents of the Investor, directly or indirectly, in any action designed to(ii) conflict with, or constitute a default under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which might be reasonably expected tothe Investor is a party, cause or (iii) result in the violation of any manipulation law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to the Investor, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the price of the Common StockInvestor to perform its obligations hereunder.
5.6. The Investor will not use any of the restricted Shares acquired pursuant to understands that nothing in this Agreement or any other materials presented to cover any short position the Investor in connection with the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares and has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares.
5.7. The Company acknowledges Investor represents and agrees warrants that Investor does not make or it has not made all consents, approvals, orders, authorizations, filings in relation to any representations or warranties governmental entity necessary to purchase the Accepted Shares in accordance with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) terms of this Agreement.
5.8. The Investor covenants to hold confidential, and not disclose to any third party, the Placement Agent Agreement or any written or oral advice rendered by either Placement Agent in connection with the Confidentiality Placement Agent Agreement or the Offering without the prior written consent of the Placement Agents and the Company, except that the Investor may disclose such information (i) to its financial advisors, tax advisors, accountants, attorneys, agents and other representatives, provided that such persons agree to hold confidential such information substantially in accordance with the terms of this Section 5.8 or (ii) as defined belowmay be required pursuant to a subpoena, order of request issued by a court of competent jurisdiction or by a judicial, administrative, legislative or regulatory body (provided that the Investor shall promptly notify the Company and the Placement Agents of any such disclosure). The Investor further agrees that none of the Investor and its financial advisors, tax advisors, accountants, attorneys, agents or other representatives shall be entitled to rely on any such advice provided by either Placement Agent.
Appears in 2 contracts
Samples: Share Purchase Agreement (P2 Capital Partners, LLC), Share Purchase Agreement (UTi WORLDWIDE INC)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: :
4.1 The Investor (ia) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire attached hereto as Exhibit A and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities ActClosing Date, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations documents incorporated by reference therein and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered Offering Information and (d) is either an “accredited investor” as defined in Rule 501(a) under the Securities Act or registered or a “qualified institutional buyer” as defined in Rule 144A(a) under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each required and (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. (a) The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package, the Offering Information or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.74.5 Since the date on which the Company first contacted the Investor about the Offering (the “Initial Date”), the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, tax and other advisors) and has not engaged in any purchases or sales involving the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities). The Company acknowledges and agrees Investor covenants that Investor does not make or it has not made engaged in any representations purchases or warranties with respect to sales involving the securities of the Company (including Short Sales) during the period commencing on the Initial Date and ending at the time that the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement, or Agreement to cover any short position in the Confidentiality Agreement Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined belowin Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker-dealers or foreign regulated brokers.
Appears in 2 contracts
Samples: Subscription Agreement (Tennessee Commerce Bancorp, Inc.), Subscription Agreement (Tennessee Commerce Bancorp, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 4.1 The Investor represents and warrants to, and covenants with, the Company that: that (ia) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Securities (including the Warrant Shares), including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities (including the Warrant Shares; ), (iib) the Investor is acquiring has answered all questions on the number of Shares, each Signature Page and the Investor Questionnaire attached as set forth Exhibit A hereto for use in Section 3 preparation of the Stock Purchase Agreement in Prospectus Supplement and the ordinary course answers thereto are true and correct as of its business the date hereof and for its own account for investment only will be true and with no present intention correct as of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; Closing Date and (iiic) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor hasInvestor, in connection with its decision to purchase the number of Shares as Securities set forth in Section 3 on the Signature Page, relied only upon any or all of the Stock Purchase following: the Registration Statement, the Base Prospectus, the Prospectus Supplement, the Company’s regular reports on Forms 10-K, 10-Q and 8-K as filed by the Company with the Commission, the Disclosure Package (as defined in the Agency Agreement, relied upon ) provided to the Exchange Act Documents Investor and the representations and warranties of the Company contained herein. The herein and in the Agency Agreement and the Investor understands that its acquisition of the Shares has not been registered under relied on any other information, if any, provided by the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of Placement Agents to the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 4.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or any Placement Agent that would permit an offering of the Securities (including the Warrant Shares), or possession or distribution of offering materials in connection with the issue of the Securities (including the Warrant Shares, ) in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities (including the Warrant Shares) or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants Placement Agents are not authorized to make and has not made any representation or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Securities (including the provisions of this Agreement and Warrant Shares), except as set forth or incorporated by reference in the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to itStatement, and the Investor acknowledges that Base Prospectus, the certificates evidencing Prospectus Supplement or the Shares will be imprinted with a legend that prohibits their transfer except Disclosure Package (as defined in accordance therewiththe Agency Agreement).
5.4. 4.3 The Investor further represents and warrants to, and covenants with, the Company that (ia) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the 4.4 The Investor nor any person acting on its behalf or at its direction has engaged understands that nothing in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, any other materials presented to the Investor in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of connection with the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Securities (including the Warrant Shares.
5.6) constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Securities (including the Warrant Shares).
5.7. The 4.5 Since the date on which the Company acknowledges and agrees that or any Placement Agent first contacted such Investor does not make or about the Offering, Investor has not made engaged in any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement securities of the Company (including, without limitation, any Short Sales (as defined below) involving the Company’s securities). Each Investor covenants that it will not engage in any transactions in the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. Each Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.
4.6 The Investor hereby acknowledges that (a) the price of the Securities set forth in this Agreement was established by the Company following discussions and arms-length negotiations with the Investors, and the Investor is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement; (b) the Placement Agents are not acting as fiduciaries or advisors of the Company or the Investor and (c) the Company’s engagement of the Placement Agents in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. The Investor agrees that it will not claim that the Placement Agents have rendered advisory services of any nature or respect, or owe any fiduciary or similar duty to the Investors, in connection with such transaction or the process leading thereto.
Appears in 2 contracts
Samples: Placement Agency Agreement (Avi Biopharma Inc), Subscription Agreement (Avi Biopharma Inc)
Representations, Warranties and Covenants of the Investor. 5.14.1 INVESTOR KNOWLEDGE AND STATUS. The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor Act, is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like similar to that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor understands that the Shares are "restricted securities" and have not been registered under the Securities Act and is acquiring the number of Shares, each as Shares set forth in Section paragraph 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with only, has no present intention of distributing any of such Shares, or any Shares and has no arrangement or understanding with any other persons regarding the distribution of such SharesShares (this representation and warranty not limiting the Investor's right to sell Shares pursuant to the Registration Statement or otherwise, or other than with respect to any claim arising out of a breach of this representation and warranty, the Investor's right to indemnification under Section 6.3); (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions in paragraph 4 of the Stock Purchase Agreement and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section paragraph 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained hereinherein and the information contained in the SEC Reports. The Investor understands that its acquisition the issuance of the Shares to the Investor has not been registered under the Securities Act Act, or registered or qualified under any state securities law law, in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of representations made by the Investor's investment intent as expressed hereinInvestor in this Agreement. Subject to compliance with No person (including without limitation the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States Placement Agent) is authorized by the Company to provide any representation that would permit an offering of is inconsistent with or in addition to those contained herein or in the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to itSEC Reports, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or it has not made received or relied on any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below)such representations.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Ats Medical Inc), Stock Purchase Agreement (Ats Medical Inc)
Representations, Warranties and Covenants of the Investor. 5.1The undersigned investor acknowledges that the Securities are being offered and sold without registration under the Securities Act in reliance upon the exemption provided in Section 4(a)(2) of the Securities Act and in Rule 506(b) of Regulation D promulgated thereunder and that the availability of such exemption is based in material respects upon the truth of the following representations. The Investor With the foregoing in mind and to induce the Company to accept this subscription, the undersigned hereby represents and warrants toto the Company, and covenants witheach other person that subscribes for the Securities, the Company’s legal counsel and each agent of the Company that: as follows:
(ia) the Investor undersigned has received and reviewed all information that he, she or it considers necessary or appropriate for deciding whether to purchase the Securities, including, without limitation, the registration statements of the Company and exhibits thereto filed with the Securities and Exchange Commission and the of the Company filed with the Securities and Exchange Commission and effective on November 23, 2020 ( collectively, the “SEC Documents”); the undersigned (and/or his, her or its professional advisor, if any) has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the Offering and regarding the business, financial condition, properties, operations, prospects and other aspects of the Company and all such questions have been answered to the undersigned’s full satisfaction; and the undersigned has further had the opportunity to obtain all information (to the extent that the Company possesses or can acquire such information without unreasonable effort or expense) which the undersigned deems necessary to evaluate the investment and to verify the accuracy of information otherwise provided to the undersigned;
(b) the undersigned has not relied on any information or representations with respect to the Company or the Offering of the Securities, other than as expressly set forth herein or as set forth in the SEC Documents; the undersigned understands that no person has been authorized to give any information or to make any representations other than those expressly contained herein;
(c) the undersigned is an "“accredited investor" as defined in ” within the meaning of Rule 501(a) of Regulation D under the Securities Act Act; and the Investor is also knowledgeableundersigned agrees to furnish any additional information requested to assure compliance with applicable federal and State Securities Laws in connection with the purchase and sale of the Securities;
(d) the undersigned represents that he, sophisticated she or it has consulted with his, her or its own tax, investment and experienced in making, and is qualified to make decisions legal advisors with respect to investments in shares presenting an investment decision like that involved in the federal, state, local and foreign tax consequences arising from his, her or its purchase of the SharesSecurities to the extent the undersigned has determined it necessary to protect his, including her or its own interest in connection with a subscription for the Securities in view of the undersigned’s prior financial experience and present financial condition, and has relied on his, her or its own analysis and investigation and that of the undersigned’s advisors in determining whether to invest in the Securities;
(e) the undersigned recognizes that an investment in the Securities involves a high degree of risk and no assurance or guarantee has or can be given that an investor in the Company will receive a return of his, her or its capital or realize a profit on such investor’s investment;
(f) the undersigned has made equity investments in securities issued micro-cap companies or is experienced in business matters and regards himself, herself or itself as a sophisticated investor able to evaluate investment and financial information or chose independent professional advisors who are unaffiliated with, have no equity interest in and are not compensated by the Company or any affiliate of the Company, directly or indirectly, to assist in such evaluation and, either alone or with such advisers, has such knowledge and investments experience in comparable companies, financial and business matters that the undersigned is capable of evaluating the merits and risks of an investment in the Securities and has requested, received, reviewed and considered all information it deemed relevant the capacity to protect the undersigned’s own interests in making an informed decision to purchase connection with the Shares; undersigned’s proposed investment in the Securities;
(iig) the Investor is acquiring undersigned has determined that he, she or it can afford to bear the number of Shares, each as set forth in Section 3 risk of the Stock Purchase Agreement investment in the ordinary course Securities, including loss of its business the entire investment in the Company and he, she or it will not experience personal hardship if such a loss occurs;
(h) the undersigned has all requisite power and capacity (if the undersigned is an individual) or authority (if the undersigned is an entity) to enter into this Subscription Agreement and to perform all the obligations required to be performed by the undersigned hereunder;
(i) the undersigned is purchasing the Securities solely for his, her or its own account for investment only (not for the account of any other person), and not with a view to, or for, any resale, distribution, fractionalization, or other transfer thereof, and the undersigned has no present intention of distributing plans to enter into any of such Sharescontract, undertaking, agreement, or arrangement for any arrangement such resale, distribution, fractionalization, or understanding with transfer;
(j) the undersigned acknowledges that neither the Company nor any other persons regarding person offered to sell the distribution Securities to him, her or it by means of any form of general advertising, such Shares; as media advertising or seminars;
(iiik) the Investor undersigned is aware and understands that no federal or state agency has made any recommendation or endorsement of the Securities as an investment, nor has any such governmental agency reviewed or passed upon the adequacy of information disclosed to the undersigned, and the Securities are being issued without registration under the Securities Act;
(l) the undersigned understands that the Securities have not been, and the undersigned has no rights to require that they be, registered or qualified under the Securities Act; that there is not now any public market for the Securities and none is anticipated; that the Securities will notnot be readily accepted as collateral for a loan; and that it may be extremely difficult to sell the Securities in the event of a financial emergency; as a consequence, directly the undersigned understands that he, she or indirectlyit must bear the economic risks of the investment in the Securities for an indefinite period of time;
(m) the undersigned has been advised and understands that all certificates evidencing ownership of the Securities will bear a legend in substantially the form set forth in Section 11;
(n) the undersigned agrees: (i) that he, offer, she or it will not sell, assign, pledge, give, transfer or otherwise dispose of (collectively, a “Transfer”) the Securities, or solicit any offers interest therein, or make any offer or attempt to buy,) do any of the Shares foregoing, except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision pursuant to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been an offering registered under the Securities Act and all applicable State Securities Laws or registered or qualified under pursuant to an opinion of counsel satisfactory to the Company that such registration is not required; (ii) that any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature Transfer of the Investor's investment intent as expressed herein. Subject Securities shall be subject to the applicable terms of the Company’s Articles of Incorporation and bylaws; and (iii) that the Company and any transfer agent for the Securities shall not be required to give effect to any purported Transfer of such Securities except upon compliance with the Securities Actforegoing restrictions;
(o) the undersigned acknowledges that the Company has the right in its sole and absolute discretion to abandon the Offering at any time prior to the completion of the Offering and to return the previously paid subscription price of the Securities, applicable securities laws without interest thereon, to the undersigned;
(p) the undersigned understands that, unless he, she or it notifies the Company in writing to the contrary at or before the Closing, all the undersigned’s representations and warranties contained in this Subscription Agreement will be deemed to have been reaffirmed and confirmed as of the Closing, taking into account all information received by the undersigned;
(q) The undersigned’s overall commitment to investments that are not readily marketable is not disproportionate to the undersigned’s net worth and the respective rules undersigned’s investment in the Company will not cause such overall commitment to become disproportionate to the undersigned’s net worth. The address set forth on the signature page below is the undersigned’s true and regulations promulgated thereundercorrect residence (or, nothing contained herein shall be deemed a representation or warranty by such Investor if not an individual, domiciliary) address;
(r) The undersigned is not relying on the Company with respect to hold the Shares for any period economic considerations of timethe undersigned relating to this investment.
5.2. (s) The Investor acknowledgesundersigned acknowledges that the information furnished by the Company to the undersigned or its advisors in connection with this Offering, represents except for the SEC Documents, is confidential and nonpublic and agrees that no action has been or will be taken in any jurisdiction outside the United States all such information that is material and not yet publicly disseminated by the Company that would permit an offering shall be kept in confidence by the undersigned and neither used by the undersigned for the undersigned’s personal benefit (other than in connection with this Subscription), nor disclosed to any third party, except the undersigned’s legal and other advisors who shall be advised of the Sharesconfidential nature of such information, for any reason; provided, that this obligation shall not apply to any such information that (A) is part of the public knowledge or possession literature and readily accessible by the public as of the date hereof, (B) becomes a part of the public knowledge or distribution literature and readily accessible by publication (except as a result of offering materials a breach of this provision) or (C) is received from third parties (except for third parties who disclose such information in violation of any confidentiality obligation);
(t) The undersigned has completed and returned to the Company a Purchaser Questionnaire, in the form attached hereto. The information provided by the undersigned in the Purchaser Questionnaire is true and correct and the undersigned understands that the Company is relying upon such information in connection with the issue purchase of the SharesSecurities by the undersigned. Furthermore, if the undersigned has used a representative or representatives (each, a “Purchaser Representative”) acceptable to the Company in connection with the undersigned’s evaluation of an investment in the Securities, each such Purchaser Representative has completed and returned to the Company a Purchaser Representative Questionnaire, in the form available from the Company upon request;
(u) The undersigned further certifies that the information contained in the accompanying Purchaser Questionnaire is true and correct. The undersigned further certifies that it is NOT subject to backup withholding because either (1) it is exempt from backup withholding, (2) it has not been notified by the Internal Revenue Service (“IRS”) that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (3) the IRS has notified it that it is no longer subject to backup withholding. The undersigned understands that these certifications, which are made under penalty of perjury, may be disclosed to the IRS by the Company and that any jurisdiction outside false statements contained in this paragraph could be punished by fine and imprisonment;
(v) The undersigned represents that neither it nor, to its knowledge, any person or entity controlling, controlled by or under common control with the undersigned nor any person or entity having a beneficial interest in the undersigned nor any other person or entity on whose behalf the undersigned is acting (1) is a person or entity listed in the annex to Executive Order No. 13224 (2001) issued by the President of the United States where legal action (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), (2) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control (OFAC), (3) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank, (4) is a senior non-U.S. political figure or an immediate family member or close associate of such figure, or (5) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules or orders (categories (1) through (5) collectively, a “Prohibited Investor”). The undersigned agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules and orders. The undersigned consents to the disclosure to U.S. regulators and law enforcement authorities by the Company for that purpose is required. Each Investor outside and its affiliates and agents of such information about the United States will undersigned as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules and orders. If the undersigned is a financial institution that is subject to the PATRIOT Act, Public Law No. 107-56 (Oct. 26, 2001) (the “Patriot Act”), the undersigned represents that the undersigned has met all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in of its possession or distributes any offering material, in all cases at its own expense.
5.3respective obligations under the Patriot Act. The Investor hereby covenants with undersigned acknowledges that if, following the investment in the Company not by the undersigned, the Company reasonably believes that the undersigned is a Prohibited Investor or is otherwise engaged in suspicious activity or refuses to make any sale of provide promptly information that the Shares without complying Company requests, the Company has the right or may be obligated to prohibit additional investments, segregate the assets constituting the investment in accordance with applicable regulations or immediately require the provisions of this Agreement and undersigned to transfer the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor Shares. The undersigned further acknowledges that the certificates evidencing the Shares undersigned will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, not have any claim against the Company that or any of its affiliates or agents for any form of damages as a result of any of the foregoing actions; and
(iw) The foregoing representations, warranties and agreements, together with all other representations and warranties made or given by the Investor has full right, power, authority and capacity undersigned to enter into this Agreement and to consummate the Company in any other written statement or document delivered in connection with the transactions contemplated hereby hereby, shall be true and has taken correct in all necessary action to authorize the execution, delivery respects on and performance as of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation the Closing as if made on and as of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws such date and otherwise will comply with federal securities laws in the holding and sale of the Sharesshall survive such date.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 2 contracts
Samples: Subscription Agreement (Clean Energy Technologies, Inc.), Subscription Agreement (Clean Energy Technologies, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 4.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 2 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire attached hereto as Exhibit A (the "Investor Questionnaire") for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 2 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time. The Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
5.2. 4.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 4.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 6.2(c).
5.4. 4.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. 4.5 Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) 20 trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.64.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. 4.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 4 and 16(a15(a) of this Agreement, or in the Confidentiality Agreement (as defined below)Investor Questionnaire.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Spire Corp), Stock Purchase Agreement (Spire Corp)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants tothat it has access to the Company’s base prospectus dated February 13, 2009 and covenants withthe Issuer Free Writing Prospectus dated February 13, 2009, relating to the Offering, (collectively, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time“Prospectus”).
5.2. 5.2 The Investor acknowledgesInvestor, represents and agrees that no action has been or will be taken in any jurisdiction if outside the United States by the Company that would permit an offering of the SharesStates, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. 5.3 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable).
5.5. Neither 5.4 The Investor understands that nothing in the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale)Prospectus, pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, any other materials presented to the Investor in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of connection with the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesSecurities.
5.7. The Company acknowledges 5.5 From and agrees that after obtaining the knowledge of the sale of the Securities contemplated hereby, such Investor does not make or has not made taken, and prior to the public announcement of the transaction such Investor shall not take, any representations action that has caused or warranties will cause such Investor to have, directly or indirectly, sold or agreed to sell any Common Stock, effected any short sale, whether or not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the Securities Exchange Act) with respect to the transactions contemplated hereby Common Stock, granted any other than those specifically set forth right (including, without limitation, any put or call option) with respect to the Common Stock or with respect to any security that includes, relates to or derived any significant part of its value from the Common Stock, whether or not, directly or indirectly, in Sections 5, 6 and 16(a) of this Agreement, or in order to hedge it position on the Confidentiality Agreement (as defined below)Shares.
Appears in 2 contracts
Samples: Purchase Agreement (BMP Sunstone CORP), Registered Direct Placement Agency Agreement (BMP Sunstone CORP)
Representations, Warranties and Covenants of the Investor. 5.1. (a) The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act of 1933, as amended (the "Securities Act") and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares securities presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesSecurities; (ii) the Investor is acquiring the number shares of Shares, each as Series B Preferred Stock set forth in Section 3 of on the Stock Purchase Agreement signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, has answered all questions on the signature page hereto for use in connection with its decision preparation for the Registration Statement (referred to purchase below) and the number of Shares as set forth in Section 3 answers thereto are true and correct to the best of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties Investors knowledge as of the Closing Date; and (v) the Investor will notify the Company contained herein. immediately of any change in any of such information until such time as the Investor has sold all of its Securities or until the Company is no longer required to keep the Registration Statement effective.
(b) The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees acknowledges that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the SharesSecurities, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each The Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. (c) The Investor hereby covenants with the Company not to make any sale of the Shares Securities without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).including
Appears in 2 contracts
Samples: Series B Preferred Stock Purchase Agreement (Bb Biotech Ag), Series B Preferred Stock Purchase Agreement (Alexion Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, to and covenants with, with the Company that: :
(ia) The Investor, taking into account the Investor personnel and resources it can practically bring to bear on the purchase of the Shares contemplated hereby, is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares securities presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companiesCompany, and has requested, received, reviewed and considered all information it deemed the Investor knows about and deems relevant (including the SEC Documents) in making an informed decision to purchase the Shares; .
(iib) the The Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Shares pursuant to this Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons Persons regarding the distribution of such Shares; , except in compliance with Section 5.1(c).
(iiic) the The Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares securities purchased hereunder except in compliance with the Securities Act, applicable state securities laws blue sky laws, and the respective rules and regulations promulgated thereunder; and .
(ivd) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition is an “accredited investor” within the meaning of the Shares has not been registered Rule 501 of Regulation D promulgated under the Securities Act or registered or qualified a Qualified Institutional Buyer within the meaning of Rule 144A promulgated under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. (e) The Investor acknowledgeshas all requisite corporate power, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Sharesall requisite corporate action, or possession or distribution of offering materials in connection with the issue of the Sharesto authorize, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws execute and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of deliver this Agreement and each of the Registration Rights Agreement other agreements and without complying with any prospectus delivery requirement then applicable instruments contemplated herein to it, and which the Investor acknowledges that the certificates evidencing the Shares will be imprinted with is a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants toparty, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby herein and has taken therein and to carry out and perform all necessary action to authorize of the execution, Investor’s obligations hereunder and thereunder. Upon the execution and delivery and performance of this Agreement, and (ii) this Agreement constitutes shall constitute a valid and binding obligation of the Investor Investor, enforceable against the Investor in accordance with its terms, except (i) as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting the enforcement of creditors' and contracting parties' ’ rights generally and except (ii) as enforceability may be subject limited by equitable principles generally, including any specific performance.
(f) The Investor is not a broker or dealer registered pursuant to general principles Section 15 of equity the Exchange Act (regardless of whether such enforceability is considered in a proceeding in equity or at law“registered broker dealer”) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stockis not affiliated with a registered broker dealer. The Investor will is not use party to any agreement for distribution of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.65.2 The Investor has not, either directly or indirectly through an affiliate, agent or representative of the Company, engaged in any transaction in the securities of the Company other than with respect to the transactions contemplated herein, since the time that the Investor was first contacted by the Company or any other Person regarding the transactions contemplated hereby until the date hereof, except as set forth in filings made with the Commission pursuant to the Exchange Act.
5.3 The Investor understands that nothing in this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Coherus BioSciences, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement Signature Page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor hashas answered all questions on the Signature Page hereto and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (vi) the Investor, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Company's SEC Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act of 1933, as amended (the "Securities Act"), or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached hereto as Exhibit B, applicable securities laws which questionnaire is true and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timecorrect in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense. The Placement Agent is not authorized to make any representation or use any information in connection with the issue, placement, purchase and sale of the Shares.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement Agreement, including Section 7.2 hereof, and without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither 5.5 Investor will not, prior to the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale effectiveness of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engageRegistration Statement, directly or indirectlyindirectly sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a "Disposition"), the Shares, nor will Investor engage in any action hedging or other transaction which is designed to, to or which might could reasonably be reasonably expected to, cause to lead to or result in any manipulation a Disposition of the price of Shares by the Common StockInvestor or any other person or entity. The Investor will not use Such prohibited hedging or other transactions would include, without limitation, effecting any of the restricted Shares acquired pursuant to this Agreement to cover short sale or having in effect any short position in (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to the Common Stock of the Company if doing so would be or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in violation of applicable securities laws and otherwise will comply this Agreement or any other materials presented to the Investor in connection with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Pharmacopeia Inc), Stock Purchase Agreement (Pharmacopeia Inc)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor 5.1 Each Investor, severally and not jointly, represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Rule 501(a) of Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesPreferred Stock, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesPreferred Stock; (ii) the Investor is acquiring the number of Shares, each as Preferred Stock set forth in Section 3 of Annex I to the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Preferred Stock or the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesPreferred Stock or the Securities, except in accordance with applicable securities law; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Preferred Stock or the Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions in the Agreement and the answers thereto are true, correct and complete in all material respects as of the date hereof and will be true, correct and complete in all material respects as of the date of each Closing; and (ivv) the Investor has, in connection with its decision to purchase the number of Shares as Preferred Stock set forth in Section 3 of Annex I to the Stock Purchase Agreement, relied only upon the Exchange Act Documents (which are incorporated herein by reference and which Investor acknowledges it has reviewed), the representations and warranties of the Company contained hereinherein and the Disclosure Schedules. The Each Investor understands that its acquisition of the Shares Preferred Stock has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with Investor understands the Preferred Stock purchased hereunder must be held indefinitely unless there is an effective Registration Statement under the Securities ActAct with respect to the Preferred Stock or an exemption from registration available under the Securities Act and applicable state securities laws, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor is able to hold bear the Shares for any period economic risk of timean investment in the Preferred Stock.
5.2. The Investor 5.2 Each Investor, severally and not jointly, acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesPreferred Stock, or possession or distribution of offering materials in connection with the issue of the SharesPreferred Stock, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor 5.3 Each Investor, severally and not jointly, hereby covenants with the Company not to make any sale of the Shares Preferred Stock or the Common Stock underlying the Preferred Stock without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to itall securities laws, and the Investor acknowledges that the certificates evidencing the Shares Preferred Stock and the Common Stock underlying the Preferred Stock will be imprinted with a legend that prohibits their transfer except in accordance therewith. Upon the earlier of (i) a registration statement covering the Common Stock underlying the Preferred Stock becoming effective and (ii) Rule 144 becoming available, the Investors shall be entitled to exchange their certificates representing the Common Stock for certificates that do not contain any restrictive legend.
5.4. The Investor 5.4 Each Investor, severally and not jointly, further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, (ii) the execution and delivery of this Agreement, the purchase of the Preferred Stock under the Agreement, the fulfillment of the terms of the Agreement and the consummation of the transactions contemplated hereby will not conflict with or constitute a violation of, or default (with the passage of time or otherwise) under the charter, bylaws or other organizational documents of the Investor, and (iiiii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.5 Investor will not use any of the restricted Shares Preferred Stock or underlying Common Stock acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws laws.
5.6 Each Investor understands that nothing in the holding Exchange Act Documents, this Agreement or any other materials presented to the Investors in connection with the purchase and sale of the Shares.
5.6Preferred Stock constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesPreferred Stock.
5.7. The Company acknowledges and agrees that Investor does 5.7 Except as disclosed in the Disclosure Schedule, the Investors have not make dealt with any broker or has not made any representations or warranties finder in connection with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this by the Agreement, and the Investors have not incurred, and shall not incur, directly or indirectly, any liability for any brokerage or finders’ fees or agents commissions or any similar charges in connection with the Confidentiality Agreement (transactions contemplated by the Agreement.
5.8 Investor is not purchasing the Preferred Stock as defined below)a result of any advertisement, article, notice or other communication regarding the Preferred Stock published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.9 Each Investor has independently evaluated the merits of its decision to purchase Preferred Stock, such decision has been independently made by such Investor and such Investor confirms that it has only relied on the advice of its own business and/or legal counsel and not on the advice of the Company’s or any other Investor’s business and/or legal counsel in making such decision.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Power Efficiency Corp), Securities Purchase Agreement (Power Efficiency Corp)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, or any Shares and no arrangement or understanding exists with any other persons person regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the signature page hereto for use in preparation of the Registration Statement (as defined in Section 7.1) and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents Offering Materials and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached as Exhibit A hereto, applicable securities laws which questionnaire is true and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timecorrect in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement Agreement, including Section 7.2 hereof, and without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as rights to indemnity may be limited by state or federal securities laws or public policy underlying such laws.
5.5 Investor will not, prior to the indemnification agreements effectiveness of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock right with respect to (including without limitation any short salecollectively, a "Disposition"), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws laws, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of the Shares by the Investor or any other person or entity. Such prohibited hedging or other transactions would include, without limitation, effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and otherwise will comply regardless of when such position was entered into) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with federal securities laws respect to the Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Shares.
5.6 The Investor understands that nothing in this Agreement or any other materials presented to the holding Investor in connection with the purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 2 contracts
Samples: Purchase Agreement (Hanover Compressor Co /), Purchase Agreement (Hanover Compressor Co /)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor represents and warrants to, and covenants agrees with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agents that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package, the documents incorporated by reference therein and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timeOffering Information.
5.2. The 4.2 If the Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction is outside the United States by the Company that would permit an offering of the SharesStates, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. (a) The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that 4.5 Since the date on which any Placement Agent first contacted such Investor does not make or about the Offering, the Investor has not made engaged in any representations transactions in the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities), and has not violated its obligations of confidentiality. Each Investor covenants that it will not engage in any transactions in the securities of the Company (including Short Sales) or warranties with respect disclose any information about the contemplated offering (other than to its advisors that are under a legal obligation of confidentiality) prior to the time that the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) by this Agreement are publicly disclosed. Each Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement, or Agreement to cover any short position in the Confidentiality Agreement Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined belowin Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.
Appears in 2 contracts
Samples: Placement Agent Agreement (Cytokinetics Inc), Subscription Agreement (Cytokinetics Inc)
Representations, Warranties and Covenants of the Investor. 5.1The Investor hereby represents and warrants to and covenants with the Corporation as follows:
(a) The Investor recognizes that an investment in the Corporation involves a high degree of risk. The Investor represents further recognizes that the Corporation has a very limited financial and warrants to, and covenants with, the Company that: operating history.
(b) The Investor has been advised that (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an there will be no market for investment decision like that involved made in the purchase of the Shares, including investments in securities issued by the Company Corporation and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) it may not be possible to readily liquidate this investment.
(c) The Investor's overall commitment to investments which are not readily marketable is not disproportionate to its net worth; its investment in the Corporation will not cause such overall commitment to become excessive; and it can afford to bear the loss of its entire investment.
(d) The Investor has adequate means of providing for its current needs and personal contingencies and has no need for liquidity in its investment in the Corporation.
(e) The Investor satisfies any special suitability or other applicable requirements of its state or other jurisdiction of residence and/or the state or other jurisdiction in which the transaction occurs.
(f) The Investor has received and reviewed carefully the Term Sheet provided to the Investor is acquiring the number of Shares, each and all attachments thereto. Except as set forth in Section 3 the Term Sheet, no representations or warranties have been made to the Investor by the Corporation or any agent, officer, employee or affiliate, and in entering into this transaction the Investor is not relying upon any information other than that contained in such documents and the results of its own independent investigation.
(g) The Investor has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Corporation.
(h) The Investor confirms that all documents, records, and books pertaining to its proposed investment in the Corporation which it requested to be made available to it have been made so available.
(i) The Investor has had an opportunity to ask questions of and receive answers from officers or representatives of the Stock Purchase Agreement in Corporation concerning the ordinary course terms and conditions of this investment, and all such questions have been answered to its business and full satisfaction.
(j) The Investment for which the Investor hereby subscribes will be acquired for its own account for investment only and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance not with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).view toward resale or
Appears in 2 contracts
Samples: Subscription Agreement (Solutionsamerica Inc), Subscription Agreement (Solutionsamerica Inc)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, companies and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesOffering Materials; (ii) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement Shares in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, or any and no arrangement or understanding exists with any other persons person regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, including the prospectus delivery requirements thereunder if applicable, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the information provided by the Investor on the signature page is true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein, the Offering Materials and the legal opinion of counsel to the Company and other documents delivered by or on behalf of the Company at the Closing. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 5.2 The Investor acknowledges, represents acknowledges and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an a public offering of the Shares, or possession or distribution of the Offering Materials or any other offering or publicity materials in connection with the issue of relating to the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each .
5.3 The Investor outside understands that the United States will comply with all applicable Shares are "restricted securities" under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in each foreign jurisdiction certain limited circumstances. In this connection the Investor represents that it is familiar with SEC Rule 144, as presently in which it purchaseseffect, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expenseand understands the resale limitations imposed thereby and by the Securities Act.
5.3. The Investor hereby covenants with 5.4 It is understood that the Company not to make any sale stock certificates for the Shares shall bear a legend in substantially the following form unless and until the resale of the Shares without complying with the provisions of this Agreement and the pursuant to an effective Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing Statement or until the Shares will may be imprinted with a legend that prohibits their transfer except in accordance therewithsold under Rule 144 without restrictions: THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR, THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
5.4. 5.5 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements agreement of the Investor herein may be legally unenforceable.
5.5. Neither the 5.6 The Investor nor any person acting on its behalf or at its direction has engaged understands that nothing in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, any other materials presented to the Investor in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of connection with the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 2 contracts
Samples: Purchase Agreement (Cerus Corp), Purchase Agreement (Cerus Corp)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the SharesShares and Warrants, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as and Warrants set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws documents incorporated by reference therein and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timeOffering Information.
5.2. The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the SharesShares and Warrants, or possession or distribution of offering materials in connection with the issue of the Shares, Shares and Warrants in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and Securities, except as set forth or incorporated by reference in the Registration Rights Agreement and without complying with Statement, Prospectus or any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithfree writing prospectus.
5.4. (a) The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package, the Offering Information or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesShares and Warrants. The Investor also understands that there is no established public trading market for the Warrants, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any national securities exchange or other trading market. The Investor understands that without an active trading market, the liquidity of the Warrants will be limited.
5.7. 4.5 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first provided the material pricing terms of the Offering, the Investor has not disclosed any material pricing information regarding the Offering to any third parties (other than those specifically set forth its legal, accounting and other advisors) and has not engaged in Sections 5any purchases or sales of the securities of the Company (including, 6 and 16(a) of this Agreementwithout limitation, or in the Confidentiality Agreement any Short Sales (as defined belowherein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
Appears in 2 contracts
Samples: Subscription Agreement (Moleculin Biotech, Inc.), Subscription Agreement (Moleculin Biotech, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any information provided to the Company, to the extent the Company requires any such changed information in order to comply with any law or any regulation or rule of any government agency, the National Association of Securities Dealers or the Nasdaq National Market applicable to the Company, until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents Placement Memorandum and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached to the Placement Memorandum, applicable securities laws which questionnaire is true and correct in all material respects. Investor agrees to furnish promptly to the Company such information regarding such Investor and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty distribution proposed by such Investor as the Company may reasonably request in order to hold prepare the Shares for Registration Statement and to the extent the Company requires any period such information in order to comply with any law or any regulation or rule of timeany government agency, the National Association of Securities Dealers or the Nasdaq National Market applicable to the Company.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and without causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.5 Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws laws.
5.6 The Investor understands that nothing in the holding Placement Memorandum, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor hereby represents and warrants to, and covenants with, the Company that: as follows:
5.1 (i) the The Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the SharesCommon Stock and Warrants, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesCommon Stock and Warrants, including without limitation, the Confidential Private Placement Memorandum dated _______ 2003, and all exhibits attached thereto and incorporated by reference therein (the “Memorandum”) and the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2002 delivered to the Investor; (ii) the Investor is acquiring the number of Shares, each as shares of Common Stock and Warrants set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and signature page hereto for its own account for investment only and with no present intention of distributing any of such Sharesthe shares of Common Stock, Warrants and shares of Common Stock issuable upon exercise of the Warrants, in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of such Sharesthe shares of Common Stock, Warrants and the shares of Common Stock issuable upon exercise of the Warrants; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Common Stock, Warrants and shares of Common Stock issuable upon exercise of the Warrants except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Common Stock, Warrants and shares of Common Stock issued upon exercise of the Warrants or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as shares of Common Stock and Warrants set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents SEC Documents, other publicly available information and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares Common Stock and Warrants has not been registered under the Securities Act or registered or qualified under any state securities law laws in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements and covenants of the Investor set forth in this Agreement and the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 5.2 The Investor acknowledges, represents and agrees acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesCommon Stock and Warrants, or possession or distribution of offering materials in connection with the issue issuance of the SharesCommon Stock and Warrants, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares the shares of Common Stock and Warrants or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares Common Stock and Warrants without complying with the provisions of this Agreement and Agreement, including Section 7.2 hereof, provided that the Registration Rights Agreement and Company complies with its obligations under Section 7.1, without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Shares Common Stock and Warrants will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither 5.5 Investor will not, prior to the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale effectiveness of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engageRegistration Statement, directly or indirectly, in sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any action designed toright with respect to (collectively, or which might be reasonably expected toa “Disposition”), cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity in violation of the Securities Act. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to the Common Stock of the Company or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Common Stock of the Company. The Investor acknowledges that the Common Stock, Warrants and shares of Common Stock issuable upon exercise of the Warrants shall bear a restrictive legend to the effect that the Common Stock, Warrants and Common Stock issuable upon exercise of the Warrants have not been registered under the Securities Act of 1933, as amended and such securities laws and otherwise will comply with federal securities laws may not be sold or transferred in the holding absence of an effective registration statement or pursuant to an exemption from registration.
5.6 The Investor understands that nothing in this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Common Stock and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesthe Common Stock and Warrants.
5.75.7 The Investor shall hold in strict confidence all information concerning this Agreement and the Offering of the Common Stock and Warrants until the earlier of such time as the Company has made a public announcement concerning this Agreement or the Offering of the Common Stock and Warrants.
5.8 If the Investor is an individual, the Investor certifies that he or she is not nor to his or her knowledge has been designated, a “suspected terrorist” as defined in Executive Order 13224. If the Investor is a corporation, trust, partnership, limited liability company or other organization, the Investor certifies that, to the best of its knowledge, the Investor has not been designated, and is not owned or controlled by, a “suspected terrorist” as defined in Executive Order 13224. The Investor hereby acknowledges that the Company acknowledges seeks to comply with all applicable laws covering money laundering and related activities. In furtherance of those efforts, the Investor hereby represents, warrants and agrees that: (a) none of the cash or property that the Investor will pay or will contribute to the Company ahs been or shall be derived from, or related to, any activity that is deemed criminal under United States law; and (b) no contribution or payment by the Investor to the Company, to the extent that they are within the Investor’s control, shall cause the Company to be in violation of the Untied States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the Untied States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001. The Investor shall promptly notify the Company if any of these representations ceases to be true and accurate regarding the Investor. The Investor agrees to provide the Company any additional information regarding the Investor that the Company deems necessary or convenient to ensure compliance with all applicable laws concerning money laundering and similar activities. The Investor understands and agrees that if at any time it is discovered that any of the foregoing representations are incorrect, or if otherwise required by applicable law or regulation related to money laundering similar activities, the Company may undertake appropriate actions to ensure compliance with applicable law or regulation, including but not limited to segregation and/or redemption of the Investor’s investment in the Company. The Investor does not make or has not made further understands that the Company may release confidential information about the Investor and, if applicable, any representations or warranties with respect underlying beneficial owners, to proper authorities if the transactions contemplated hereby other than those specifically Company, in its sole discretion, determines that it is in the best interest of the Company in light of relevant rules and regulations under the laws set forth in Sections 5, 6 and 16(asubsection (b) of this Agreement, or in the Confidentiality Agreement (as defined below)above.
Appears in 1 contract
Samples: Securities Purchase Agreement (Palatin Technologies Inc)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, or any Shares and no arrangement or understanding exists with any other persons person regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the signature page hereto for use in preparation of the Registration Statement (as defined in Section 7.1) and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents Offering Materials and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached as Exhibit A hereto, applicable securities laws which questionnaire is true and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timecorrect in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense. The Placement Agent is not authorized to make any representation or use any information in connection with the issue, placement, purchase and sale of the Shares other than as contained in the Offering Materials.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement Agreement, including Section 7.2 hereof, and without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither 5.5 Investor will not, prior to the Investor nor effectiveness of the Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock right with respect to (including without limitation any short salecollectively, a "Disposition"), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws laws, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of the Shares by the Investor or any other person or entity. Such prohibited hedging or other transactions would include, without limitation, effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and otherwise will comply regardless of when such position was entered into) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with federal securities laws respect to the Shares or with respect to any security (other than a broad-based market basket or index) that includes or derives any significant part of its value from the Shares.
5.6 The Investor understands that nothing in this Agreement or any other materials presented to the holding Investor in connection with the purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Samples: Purchase Agreement (Trimeris Inc)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: that (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesSecurities; (ii) the Investor is acquiring the number of Shares, each as Common Shares and Warrants set forth in Section 3 Paragraph III of the Stock Purchase this Agreement in the ordinary course of its his business and for its his own account for investment only and with no present intention of distributing any of such Shares, the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; and (ivv) the Investor has, in connection with its his decision to purchase the number of Common Shares as and Warrants set forth in Section 3 Paragraph III of the Stock Purchase this Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its neither this Offering nor the acquisition of the Shares has not Securities have been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws herein and the respective rules information provided in the Investor’s Investor Questionnaire. Investor has completed or caused to be completed and regulations promulgated thereunderdelivered to the Company the Investor Questionnaire, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timewhich questionnaire is true, correct and complete in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement have been duly authorized by all necessary action on the part of the Investor. This Agreement has been duly executed by the Investor, and (ii) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor him in accordance with its terms, except (i) as enforceability may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' ’ rights generally, (ii) as limited by rules of law governing specific performance, injunctive relief, or other equitable remedies and contracting parties' rights generally and except as enforceability (iii) to the extent the indemnification provisions contained in this Agreement may be subject limited by applicable federal or state securities laws.
5.3 The Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is acquiring the Common Shares and Warrants, and the Warrant shares receivable upon exercise thereof, in each case, for his own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof; provided, however, that by making the representations herein, the Investor does not agree to general principles hold any of equity (regardless the Securities for any minimum or other specific term and reserves the right to dispose of whether such enforceability the Securities under an exemption under the Securities Act and reserves the right to dispose of the Common Shares and Warrant Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. The Investor is considered acquiring the Securities hereunder in a proceeding the ordinary course of business.
5.5 The Investor understands that the Securities are being offered and sold to him in equity or at law) reliance on specific exemptions from the registration requirements of United States federal and except as state securities laws and that the indemnification agreements Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein may be legally unenforceablein order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. 5.6 The Investor will not use any of and his advisors, if any, have been furnished with all publicly available materials relating to the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock business, finances and operations of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in such other publicly available materials relating to the holding offer and sale of the Shares.
5.6Securities as have been requested by the Investor. The Investor has consulted and his advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such legalinquiries nor any other due diligence investigations conducted by the Investor or his advisors, tax if any, or his representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained herein. The Investor understands that his investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase the Securities involves a high degree of Sharesrisk.
5.7. 5.7 The Company acknowledges and agrees Investor understands that Investor does not make no United States federal or state agency or any other government or governmental agency has not passed on or made any representations recommendation or warranties with respect to endorsement of the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) Securities or the fairness or suitability of this Agreement, or the investment in the Confidentiality Agreement (as defined below)Securities, nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Preferred Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Preferred Shares; (ii) the Investor is acquiring the number of Shares, each as Preferred Shares set forth in Section 3 Article III of the Stock attached Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, the Preferred Shares or any arrangement or understanding with any other persons regarding the distribution of such Sharessecurities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Preferred Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Preferred Shares as set forth in Section 3 Article IV of the Stock attached Securities Purchase Agreement, relied only upon the documents filed by the Company under the Securities Exchange Act Documents of 1934, as amended, since January 1, 2009 (the “Exchange Act Documents”) and has reviewed or has had the opportunity to review a draft copy of the Company’s Annual Report on Form 10-K for the year ended December 31, 2009, and has had the opportunity to consult with management regarding the disclosures in the foregoing documents prior to making its investment decision and the representations and warranties of the Company contained herein. The Investor understands that its neither the Offering nor the acquisition of the Preferred Shares has not have been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges(other than individuals) is an entity duly organized, represents validly existing and agrees that no action has been or will be taken in any jurisdiction outside good standing under the United States by the Company that would permit an offering laws of the Shares, or possession or distribution jurisdiction of offering materials in connection its organization with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws full power and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby by this Agreement and has taken all necessary action otherwise to authorize the carry out its obligations hereunder. The execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement to be performed by the Investor have been duly authorized by all necessary corporate or similar action on the part of the Investor. This Agreement has been duly executed by the Investor, and (ii) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor it in accordance with its terms, except as rights to indemnity and contribution may be limited by state or federal securities laws or the public policy underlying such laws, and except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) ).
5.3. The Investor is not purchasing the Preferred Shares as a result of any advertisement, article, notice or other communication regarding the Preferred Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement, including, without limitation any document filed under the Securities Act of 1933, as amended (“Securities Act”).
5.4. The Investor is acquiring the Preferred Shares and except as the indemnification agreements shares of Common Stock receivable upon conversion of the Preferred Shares for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in violation of the Securities Act; provided, however, that by making the representations herein, the Investor herein may be legally unenforceabledoes not agree to hold any of the Preferred Shares for any minimum or other specific term and reserves the right to dispose of the Preferred Shares under an exemption under the Securities Act and reserves the right to dispose of the Conversion Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. The Investor is acquiring the Preferred Shares hereunder in the ordinary course of its business.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any understands that the Preferred Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable United States federal and state securities laws and otherwise will comply with federal securities laws that the Company is relying in part upon the holding truth and sale accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Preferred Shares.
5.6. The Investor has consulted and its advisors, if any, have been furnished with all publicly available materials relating to the business, finances and operations of the Company and such legalother publicly available materials relating to the offer and sale of the Securities as have been requested by the Investor. The Investor and its advisors, tax if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other due diligence investigations conducted by the Investor or its advisors, if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained herein. The Investor understands that its investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase the Securities involves a high degree of Sharesrisk.
5.7. The Company acknowledges and agrees Investor understands that Investor does not make no United States federal or state agency or any other government or governmental agency has not passed on or made any representations recommendation or warranties with respect to endorsement of the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) Preferred Shares or the fairness or suitability of this Agreement, or the investment in the Confidentiality Agreement (as defined below)Preferred Shares, nor have such authorities passed upon or endorsed the merits of the offering of the Preferred Shares.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents Placement Memorandum and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached as Exhibit D to the Placement Memorandum, applicable securities laws which questionnaire is true and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timecorrect in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense. The Placement Agent is not authorized to make any representation or use any information in connection with the issue, placement, purchase and sale of the Shares other than as contained in the Placement Memorandum.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement Agreement, including Section 7.2 hereof, and without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration Statement pursuant to Section 7.2 hereof until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither 5.5 Investor will not, prior to the effectiveness of the Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a "Disposition"), the Common Stock of the Company, nor will Investor nor any person acting on its behalf or at its direction has engaged engage in any purchase hedging or sale other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(hor call option) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant with respect to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of applicable securities laws and otherwise will comply with federal securities laws its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in the holding Placement Memorandum, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Preferred Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Preferred Shares; (ii) the Investor is acquiring the number of Shares, each as Preferred Shares set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Preferred Shares or any arrangement or understanding with any other persons regarding the distribution of such Preferred Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Conversion Shares or until the Company is otherwise no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Preferred Shares as set forth in Section Paragraph 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its neither this Offering nor the acquisition of the Shares has not Securities have been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws herein and the respective rules information provided in the Investor’s Investor Questionnaire. Investor has completed or caused to be completed and regulations promulgated thereunderdelivered to the Company the Investor Questionnaire, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timewhich questionnaire is true, correct and complete in all material respects.
5.2. 5.2 The Investor acknowledges(other than individuals) is an entity duly organized, represents validly existing and agrees that no action has been or will be taken in any jurisdiction outside good standing under the United States by the Company that would permit an offering laws of the Shares, or possession or distribution jurisdiction of offering materials in connection its organization with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws full power and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby by this Agreement and has taken all necessary action otherwise to authorize the carry out its obligations thereunder. The execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement has been duly authorized by all necessary corporate or similar action on the part of the Investor. This Agreement has been duly executed by the Investor, and (ii) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor it in accordance with its terms, except (i) as enforceability may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' ’ rights generally, (ii) as limited by rules of law governing specific performance, injunctive relief, or other equitable remedies and contracting parties' rights generally and except as enforceability (iii) to the extent the indemnification provisions contained in this Agreement may be subject limited by applicable federal or state securities laws.
5.3 The Investor is not purchasing the Preferred Shares as a result of any advertisement, article, notice or other communication regarding the Preferred Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is (i) acquiring the Preferred Shares and (ii) upon conversion of the Preferred Shares will acquire the Conversion Shares, in each case, for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof; provided, however, that by making the representations herein, the Investor does not agree to general principles hold any of equity (regardless the Securities for any minimum or other specific term and reserves the right to dispose of whether such enforceability the Preferred Shares under an exemption under the Securities Act and reserves the right to dispose of the Conversion Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. The Investor is considered acquiring the Preferred Shares hereunder in a proceeding the ordinary course of its business.
5.5 The Investor understands that the Securities are being offered and sold to it in equity or at law) reliance on specific exemptions from the registration requirements of United States federal and except as state securities laws and that the indemnification agreements Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein may be legally unenforceablein order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. 5.6 The Investor will not use any of and its advisors, if any, have been furnished with all publicly available materials relating to the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock business, finances and operations of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in such other publicly available materials relating to the holding offer and sale of the Shares.
5.6Securities as have been requested by the Investor. The Investor has consulted and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such legalinquiries nor any other due diligence investigations conducted by the Investor or its advisors, tax if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained herein. The Investor understands that its investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase the Securities involves a high degree of Sharesrisk.
5.7. 5.7 The Company acknowledges and agrees Investor understands that Investor does not make no United States federal or state agency or any other government or governmental agency has not passed on or made any representations recommendation or warranties with respect to endorsement of the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) Securities or the fairness or suitability of this Agreement, or the investment in the Confidentiality Agreement (as defined below)Securities, nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges and, represents and warrants to, and covenants agrees with, the Company that: :
(ia) The Investor acknowledges its understanding and agreement that the Investor is an "accredited investor" Shares are characterized as defined in Regulation D “restricted securities” under the Securities Act and U.S. federal securities laws inasmuch as they are being offered in a transaction not involving any public offering within the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in Unites States within the purchase meaning of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has have not been registered under the Securities Act or registered or qualified the securities laws of any jurisdiction and, unless so registered, may not be sold except as exempt from registration under any state securities law the Securities Act.
(b) The Investor acknowledges its understanding that the offering and sale of the Shares is intended to be exempt from registration under the Securities Act and that the Company is relying on the Investor’s representations and warranties in reliance on specific exemptions therefromconnection with such exemption.
(c) At the time the Investor was offered the Shares, it was and, as of the date hereof, the Investor is an “accredited investor” as defined in Rule 501(a) under the Securities Act (and has executed and delivered to the Company its Investor Questionnaire, which exemptions may depend uponthe Investor represents and warrants is true, among other thingscorrect and complete) and has a substantive, pre-existing relationship with the bona fide nature Company and the management of the Company.
(d) The Investor is acquiring the Shares solely for the Investor's ’s own beneficial account (and not for the account of others), for investment intent as expressed herein. Subject to compliance purposes, and not with a view towards, or resale in connection with, any distribution of the Shares in violation of the Securities Act, applicable securities laws and the respective rules Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the Securities Act without prejudice, however, to the Investor’s right at all times to sell or otherwise dispose of all or any part of such Shares in compliance with applicable federal and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such state securities laws.
(e) The Investor to hold acknowledges that it can bear the economic risk and complete loss of its investment in the Shares for any period and has such knowledge and experience in financial or business matters that it is capable of timeevaluating the merits and risks of the investment contemplated hereby.
5.2. (f) The Investor acknowledges, represents understands and agrees that no action has been book-entry notations for the Shares shall bear or will be taken in any jurisdiction outside reflect, as applicable, a legend substantially similar to the United States by the Company that would permit an offering following: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND, ACCORDINGLY, MAY NOT BE TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144, OR (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES ARE SUBJECT TO TRANSFER AND OTHER RESTRICTIONS SET FORTH IN A STOCK PURCHASE AGREEMENT, DATED MARCH [5], 2020, COPIES OF WHICH ARE ON FILE WITH THE COMPANY.”
(g) The Investor did not learn of the Shares, investment in the Shares as a result of any general solicitation or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expensegeneral advertising.
5.3. The Investor hereby covenants with the Company not to make any sale (h) No Person (as defined below) will have, as a result of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action by this Agreement, any valid right, interest or claim against or upon the Company or the Investor for any commission, fee or other compensation pursuant to authorize any agreement, arrangement or understanding entered into by or on behalf of the execution, delivery and performance Investor. For the purposes of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation “Person” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceableentity not specifically listed herein.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Samples: Stock Purchase Agreement (Griffin Industrial Realty, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) either (A) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares or (B) the Company has made available to the Investor, prior to the date hereof, the opportunity to ask questions of and receive complete and correct answers from representatives of the Company concerning the terms and conditions of the Shares and to obtain any additional information relating to the financial condition and business of the Company and the Investor, either alone or with its purchaser representative, has such knowledge and experience in financial and business matters that the Investor is capable of evaluating the merits and risks of the investment in the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents Documents, the 2003 Draft Financial Statements and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and without causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement), and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.5 Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.65.6 The Investor understands that nothing in the Exchange Act Documents, 2003 Draft financial Statements, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors advisers as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. 5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 5 and 16(a) of this Agreement, or in the Confidentiality Agreement (Investor Questionnaire.
5.8 The Investor acknowledges that in connection with the materials it received in this Offering that it has been provided draft financial statements as defined below)of December 31, 2003 of the Company which are not public information. These financial statements are agreed to be non-public confidential information, subject to Section 16 of this Agreement.
5.9 Investor agrees not to acquire any publicly traded securities of the Company until the later of disclosure by the Company of its December 31, 2003 financial statements and the closing of this Offering.
Appears in 1 contract
Samples: Stock Purchase Agreement (Vitacube Systems Holdings Inc)
Representations, Warranties and Covenants of the Investor. 5.14.1 INVESTOR KNOWLEDGE AND STATUS. The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor understands that the Shares are "restricted securities" and have not been registered under the Securities Act and is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement Signature Page hereto in the ordinary course of its business and for its own account for investment only and with only, has no present intention of distributing any of such Shares, or any Shares and has no arrangement or understanding with any other persons regarding the distribution of such SharesShares (this representation and warranty not limiting the Investor's right to sell Shares pursuant to the Registration Statement or otherwise, or other than with respect to any claim arising out of a breach of this representation and warranty, the Investor's right to indemnification under Section 6.3); (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page hereto and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition the issuance of the Shares to the Investor has not been registered under the Securities Act Act, or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject The Placement Agent is not authorized to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a make any representation or warranty by such Investor to hold the Shares for use any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials information in connection with the issue of the Sharesplacement, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6, and no person is authorized to provide any representation which is inconsistent or in addition to those in the SEC Reports. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or it has not made received or relied on any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below)such representations.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor represents and warrants toto the Company, as of the date hereof and as of the Closing Date, and covenants withagrees with the Company, the Company that: as follows:
(a) The Investor (i) has had full access to the Investor Disclosure Package, including the Company’s periodic reports and other information incorporated by reference therein, prior to or in connection with its receipt of this Purchase Agreement, (ii) is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares presenting Shares representing an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (iiiii) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and Shares for its own account for investment only and with no present intention of distributing any of such Sharesaccount, or an account over which it has investment discretion, and does not have any arrangement agreement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will notunderstanding, directly or indirectly, offer, sell, pledge, transfer with any person or otherwise dispose of (or solicit any offers entity to buy,) distribute any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timeShares.
5.2. (b) The Investor acknowledgesInvestor, represents and agrees that no action has been or will be taken in any jurisdiction if outside the United States by the Company that would permit an offering of the SharesStates, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. (c) The Investor further represents and warrants to, and covenants with, to the Company that (i) the Investor has full right, the requisite power, authority and capacity to enter into this Purchase Agreement and to consummate the transactions contemplated hereby and has taken otherwise to carry out its obligations hereunder; (ii) the execution and delivery of this Purchase Agreement by the Investor and the consummation by it of the transactions contemplated hereunder have been duly authorized by all necessary action to authorize on the execution, delivery and performance part of this Agreement, the Investor; and (iiiii) this Purchase Agreement constitutes a has been duly executed by the Investor and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable any bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to or by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable).
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(hd) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of understands that the Company if doing so would be has not provided it with any legal, tax or investment advice in violation connection with its purchase of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges (e) From and agrees after obtaining the knowledge of the sale of the Shares contemplated hereby, neither the Investor nor any person or entity acting on behalf of, or pursuant to any understanding with or based upon any information received from the Investor, has taken, and prior to the public announcement of the transaction shall not take, any action that has caused or will cause the Investor does to have, directly or indirectly, sold or agreed to sell any shares of Preferred Stock or shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), effected any short sale, whether or not make or has not made against the box, established any representations or warranties “put equivalent position” (as defined in Rule 16a-1(h) under the 0000 Xxx) with respect to the transactions contemplated hereby Preferred Stock or the Common Stock, granted any other than those specifically right (including, without limitation, any put or call option) with respect to the Preferred Stock or the Common Stock, or with respect to any security that includes, relates to or derives any significant part of its value from the Preferred Stock or the Common Stock, whether or not, directly or indirectly, in order to hedge its position in the Shares. The Investor agrees that it will not use any of the Shares acquired pursuant to this Purchase Agreement to cover any short position in the Preferred Stock or the Common Stock if doing so would be in violation of applicable securities laws.
(f) The Investor represents that, except as set forth below, (i) it has had no position, office or other material relationship within the past three years with the Company or persons known to it to be affiliates of the Company, (ii) it is not a, and it has no direct or indirect affiliation or association with any, FINRA member or an Associated Person (as such term is defined under FINRA Membership and Registration Rules Section 1011) as of the date hereof, and (iii) neither it nor any group of investors (as identified in Sections 5, 6 and 16(aa public filing made with the Commission) of this Agreementwhich it is a member, acquired, or in obtained the Confidentiality Agreement right to acquire, 20% or more of the Common Stock (as defined belowor Shares convertible or exercisable for Common Stock) or the voting power of the Company on a post-transaction basis. Exceptions: (If no exceptions, write “none.” If left blank, response will be deemed to be “none.”).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 3.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make making decisions with respect to investments in shares securities presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement Shares in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, the Shares or any arrangement or understanding with any other persons regarding the distribution of such the Shares; and (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. .
3.2 The Investor understands that its acquisition of the Shares has that it is acquiring are characterized as “restricted securities” under the federal securities laws inasmuch as they are being acquired in a transaction not been registered involving a public offering, and that under such laws and applicable regulations such Shares may be resold without registration under the Securities Act or registered or qualified under any state securities law only in reliance on specific exemptions therefrom, which exemptions may depend upon, among other thingscertain limited circumstances. In this connection, the bona fide nature of Investor represents that it is familiar with SEC Rule 144, as presently in effect, and understands the Investor's investment intent as expressed herein. Subject to compliance with resale limitations imposed thereby and by the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithAgreement.
5.4. 3.3 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full rightthe requisite corporate power and authority to execute, power, authority deliver and capacity to enter into perform its obligations under this Agreement and to consummate the transactions contemplated hereby and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and generally, except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither 3.4 The Investor understands that nothing in the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale)SEC Documents, pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, any other materials presented to the Investor in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of connection with the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Samples: Stock Purchase Agreement (Advanced Life Sciences Holdings, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Rule 501(a) of Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companiesCompany, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesSecurities; (ii) the Investor is acquiring the number of Shares, each as Securities set forth in Section 3 of the Stock Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities, however, nothing shall limit the Investor's right at all times to sell or otherwise dispose of all or any part of such Securities in compliance with applicable federal and state securities laws and nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Securities for any period of time; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions in the Securities Purchase Agreement for use in preparation of the Registration Statement and the answers thereto are true, correct and complete in all material respects as of the date hereof and will be true, correct and complete in all material respects as of the applicable Closing Date; (v) the Investor will notify the Company in writing immediately of any material change in any of such information until such time as the Investor has sold all of its Securities or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as Securities set forth in Section 3 of the Stock Securities Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares Securities has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with Investor understands that the Securities Actpurchased hereunder have to be held indefinitely unless there is an effective Registration Statement or an applicable exemption from the registration requirements under the Securities Act with respect to the Securities, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor is able to hold bear the Shares for any period economic risk of timean investment in the Securities.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the SharesSecurities, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares Securities without complying with the provisions of this Agreement Agreement, including Section 7.2 hereof, and if selling pursuant to the Registration Rights Agreement and Statement, without complying with any causing the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Shares Securities will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.5 Investor will not use any of the restricted Shares Securities acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws laws.
5.6 The Investor understands that nothing in the holding Exchange Act Documents, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 6.1 The Investor hereby represents and warrants to, to and covenants with, with the Company and the Agent (which representations, warranties and covenants shall survive the Closing) that: :
(ia) if the Investor is an "accredited investor" as defined in Regulation D under individual or other entity, the Securities Act Investor has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto and, if the Investor is also knowledgeablea corporation, sophisticated it is duly incorporated and experienced in makingvalidly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and is qualified others have been obtained to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase authorize execution and performance of this Agreement on behalf of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; Investor;
(iib) if the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, a corporation or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other thingsentity, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions entering into of this Agreement and the Registration Rights Agreement transactions contemplated hereby do not result in the violation of any of the terms and without complying with provisions of any prospectus delivery requirement then law applicable to itto, and or the constituent documents of, the Investor acknowledges that or of any agreement, written or oral, to which the certificates evidencing Investor may be a party or by which the Shares will Investor is or may be imprinted with a legend that prohibits their transfer except in accordance therewith.bound;
5.4. The Investor further represents and warrants to, and covenants with, the Company that (ic) the Investor has full right, power, authority duly executed and capacity to enter into delivered this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement it constitutes a valid and binding obligation agreement of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' and contracting parties' parties rights generally or by equitable principles;
(d) the Investor has the requisite knowledge and except experience in financial and business matters as enforceability to be capable of evaluating the merits and risks of the investment in the Securities and the Company, and the Investor is providing evidence of such knowledge and experience in these matters through the information requested in the Questionnaires;
(e) all information contained in the Questionnaires is complete and accurate and may be subject relied upon by the Company;
(f) the Investor is resident in the jurisdiction set out under the heading "Name and Address of Investor" on the signature page of this Agreement;
(g) the Investor is acquiring the Securities for investment purposes only and not with a view to general principles of equity (regardless of whether such enforceability is considered resale or distribution and, in a proceeding in equity particular, it has no intention to distribute either directly or at law) and except as the indemnification agreements indirectly any of the Investor herein may be legally unenforceable.Securities in the United States or to U.S. Persons, other than pursuant to an effective registration statement providing for the resale of the Securities;
5.5. Neither (h) the Investor nor any person acting on its behalf or at its direction has engaged is acquiring the Securities as principal for the Investor’s own account (except for the circumstances outlined in any purchase or sale of Common Stock (including without limitation any short saleparagraph 6.1(j)), pledgefor investment purposes only, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed and not with a view to, or which might be reasonably expected tofor, cause resale, distribution or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as itfractionalisation thereof, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, whole or in the Confidentiality Agreement (as defined below).part, and no other person has a direct or indirect beneficial interest in such Securities;
Appears in 1 contract
Samples: Securities Purchase Agreement (Cheetah Oil & Gas Ltd.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Rule 501 of Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesUnits, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesUnits; (ii) ) the Investor has carefully read and fully understands the risks involved with an investment in the Company including, without limitation, the risks identified on Annex II, attached hereto, (iii) the Investor is acquiring the number of Shares, each as Units set forth in Section 3 of the Stock Signature Page to the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Units or any arrangement or understanding with any other persons regarding the distribution of such SharesUnits; (iiiiv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Units except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (v) all of the representations made by the Investor are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as Units set forth in Section 3 of the Stock Signature Page to the Securities Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands There are no suits, pending litigation, or claims against the undersigned that its acquisition of could materially affect the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature net worth of the Investor.
5.2 The Investor acknowledges that it has had access to the Exchange Act Documents and has carefully reviewed the same. The Investor further acknowledges that the Company has made available to it the opportunity to ask questions of and receive answers from the Company's investment intent as expressed herein. Subject to compliance with officers and directors concerning the Securities Act, applicable securities laws terms and conditions of this Agreement and the respective rules business and regulations promulgated thereunderfinancial condition of the Company, nothing contained herein shall be deemed and the Investor has received to its satisfaction, such information about the business and financial condition of the Company and the terms and conditions of the Agreement as it has requested. The Investor has carefully considered the potential risks relating to the Company and a representation or warranty by such Investor to hold purchase of the Shares for any period Units, and fully understands that the Units are speculative investments, which involve a high degree of timerisk of loss of the Investor’s entire investment. Among others, the undersigned has carefully considered each of the risks identified under the caption “Risk Factors” in the Exchange Act Documents and Annex II.
5.2. 5.3 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesUnits, or possession or distribution of offering materials in connection with the issue issuance of the SharesUnits, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Units, Shares, Warrants or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.4 The Investor hereby covenants with the Company not to make any sale of the Units, Shares, Warrants or Warrant Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The overall commitment of the Investor to investments, which are not readily marketable, is not excessive in view of the Investor’s net worth and financial circumstances, and any purchase of the Units will not cause such commitment to become excessive. The Investor is able to bear the economic risk of an investment in the Units.
5.4. 5.5 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable).
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.6 Investor will not use any of the restricted Shares or Warrant Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws laws.
5.7 The Investor understands that nothing in the holding Exchange Act Documents, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesthe Units.
5.75.8 The Investor understands that the issuance of the Units to the Investor has not been registered under the Securities Act in reliance upon one or more specific exemptions therefrom, including Regulation D and/or Regulation S, which exemption depends upon, among other things, the accuracy of the Investor’s representations made in this Agreement. The Investor understands that the Units must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, or unless an exemption from such registration and qualification requirements is otherwise available. The Investor acknowledges that the Company has no obligation to register or qualify the Units or underlying Shares or Warrant Shares for resale. The Investor acknowledges and agrees that Investor does not make the Company will refuse to register any transfer of Units, Shares or has Warrant Shares that is not made any representations or warranties in accordance with respect the provisions of Regulation S, registered pursuant to the transactions contemplated hereby Securities Act or otherwise exempt from such registration. The Investor further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Shares or Warrant Shares, and requirements relating to the Company which are outside of the Investor’s control, and which the Company is under no obligation and may not be able to satisfy. The Investor has been independently advised as to the applicable holding period imposed in respect of the Shares by securities legislation in the jurisdiction in which the undersigned resides and confirms that no representation has been made respecting the applicable holding periods for the Shares or Warrant Shares in such jurisdiction and it is aware of the risks and other than those specifically set forth characteristics of the Units and of the fact that the undersigned may not resell the Units, Shares or Warrant Shares except in Sections 5, 6 accordance with applicable securities legislation and 16(aregulatory policy.
5.9 The Investor is an entity that is outside the United States and is not a “U.S. Person,” as such term is defined in Rule 902(k) of this AgreementRegulation S. The Investor is not acquiring the Units for the account or benefit of a U.S. Person. The Investor hereby represents that it has satisfied and fully observed the laws of the jurisdiction in which it is located or domiciled, in connection with the acquisition of the Units, including (i) the legal requirements of the Investor’s jurisdiction for the acquisition of the Units, (ii) any foreign exchange restrictions applicable to such acquisition, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, which may be relevant to the holding, redemption, sale, or transfer of the Units; and further, the Investor agrees to continue to comply with such laws as long as it shall hold the Units. To the knowledge of the Investor, without having made any independent investigation, neither the Company nor any person acting for the Company, has conducted any “directed selling efforts” in the Confidentiality Agreement United States as the term “directed selling efforts” is defined in Rule 902 of Regulation S, which, in general, means any activity undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the marketing in the United States for any of the Units being offered. Such activity includes, without limitation, the mailing of printed material to investors residing in the United States, the holding of promotional seminars in the United States, and the placement of advertisements with radio or television stations broadcasting in the United States or in publications with a general circulation in the United States, which discuss the offering of the Units. To the knowledge of the Investor, the Units were not offered to the Investor through, and the Investor is not aware of, any form of general solicitation or general advertising, including without limitation, (as defined below)i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, and (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising The Investor will offer, sell or otherwise transfer the Units, only (A) pursuant to a registration statement that has been declared effective under the Securities Act, (B) pursuant to offers and sales that occur outside the United States within the meaning of Regulation S in a transaction meeting the requirements of Rule 904 (or other applicable Rule) under the Securities Act, or (C) pursuant to another available exemption from the registration requirements of the Securities Act, subject to the Company’s right prior to any offer, sale or transfer pursuant to clauses (B) or (C) to require the delivery of an opinion of counsel, certificates or other information reasonably satisfactory to the Company for the purpose of determining the availability of an exemption.
5.10 A copy of the Company annual report on Form 10-K, its quarterly reports on Form 10-Q, current reports on Form 8-K and information statements are available on the SEC’s website at xxx.xxx.xxx.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1The Investor hereby represents, warrants and covenants that:
3.1 The Investor understands and accepts that the Exchange for the Exchange Securities involves various risks, including without limitation the risks outlined in the Form C filed by the Company with the SEC on June 13, 2019, the Form C-AR filed by the Company with the SEC on April 29, 2020, and the Form C-AR filed by the Company with the SEC on May 13, 2021 (the “Form C”), and in this Agreement. The Investor represents can bear the economic risk of this investment and warrants tocan afford a complete loss thereof; and the undersigned has adequate means of providing for its current needs and possible contingencies and has no present need for liquidity of the undersigned’s investment in the Company. THE INVESTOR UNDERSTANDS THAT ITS PARTICIPATION IN THE EXCHANGE AND RECEIPT OF THE EXCHANGE SECURITIES MAY ENTITLE IT TO A CASH PAYMENT WHICH WOULD BE LESS THAN ANY CASH PAYMENT TO WHICH IT MAY HAVE BEEN ENTITLED AS A HOLDER OF THE SAFE.
3.2 The Investor acknowledges that at no time has it been expressly or implicitly represented, and covenants with, the Company that: (i) guaranteed or warranted to the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments or any other person that a percentage of profit and/or amount or type of gain or other consideration will be realized because of its receipt of the Exchange Securities.
3.3 Including the Purchase Amount set forth on the signature page hereto, in comparable companiesthe past 12 month period, and the undersigned has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase not exceeded the Shares; (ii) the Investor is acquiring the number of Shares, each investment limit as set forth in Section 3 Rule 100(a)(2) of Regulation Crowdfunding.
3.4 The undersigned has received and reviewed a copy of the Stock Purchase Agreement Form C. With respect to information provided by the Company, the undersigned has relied solely on the information contained in the ordinary course Form C and the Certificate of its business Incorporation to make the decision to participate in the Exchange.
3.5 The undersigned confirms that it is not relying and for its own account for investment only and with no present intention will not rely on any communication (written or oral) of distributing any of such Sharesthe Company, the Portal, or any arrangement of their respective affiliates, as investment advice or understanding with as a recommendation to participate in the Exchange. It is understood that information and explanations related to the terms and conditions of the Exchange Securities provided in the Form C and the Certificate of Incorporation or otherwise by the Company, the Portal or any other persons of their respective affiliates shall not be considered investment advice or a recommendation to participate in the Exchange, and that neither the Company, the Portal nor any of their respective affiliates is acting or has acted as an advisor to the undersigned in deciding to participate in the Exchange. The undersigned acknowledges that neither the Company, the Portal nor any of their respective affiliates have made any representation regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any proper characterization of the Shares except Exchange Securities for purposes of determining the undersigned's authority or suitability to invest in compliance the Exchange Securities.
3.6 The undersigned is familiar with the Securities Actbusiness and financial condition and operations of the Company, applicable state securities laws all as generally described in the Form C. The undersigned has had access to such information concerning the Company and the respective rules Exchange Securities as it deems necessary to enable it to make an informed investment decision concerning its participation in the Exchange.
3.7 The undersigned understands that, unless the undersigned notifies the Company in writing to the contrary at or before the Closing, each of the undersigned's representations and regulations promulgated thereunder; warranties contained in this Agreement will be deemed to have been reaffirmed and confirmed as of the Closing, taking into account all information received by the undersigned.
3.8 The undersigned acknowledges that the Company has the right in its sole and absolute discretion to abandon this Exchange at any time prior to the completion of the Exchange. This Agreement shall thereafter have no force or effect and the Company shall return the SAFE, to the undersigned.
3.9 The undersigned understands that no federal or state agency has passed upon the merits or risks of an investment in the Exchange Securities or made any finding or determination concerning the fairness or advisability of this investment.
3.10 The Exchange Prices have been calculated as set forth on Exhibit B (iv) the Investor has, in connection “Exchange Price Calculation”). The undersigned acknowledges and agrees with its decision to purchase the Exchange Price and the Exchange Price Calculation as the valid basis for the number of Shares Exchange Securities it will receive in the Exchange.
3.11 The undersigned confirms that the Company has not (i) given any guarantee or representation as set forth to the potential success, return, effect or benefit (either legal, regulatory, tax, financial, accounting or otherwise) an of investment in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and Securities or (ii) made any representation to the representations and warranties undersigned regarding the legality of an investment in the Exchange Securities under applicable legal investment or similar laws or regulations. In deciding to participate in the Exchange, the undersigned is not relying on the advice or recommendations of the Company contained hereinand the undersigned has made its own independent decision, alone or in consultation with its investment advisors, that the investment in the Exchange Securities is suitable and appropriate for the undersigned.
3.12 The undersigned has such knowledge, skill and experience in business, financial and investment matters that the undersigned is capable of evaluating the merits and risks of its participation in the Exchange. With the assistance of the undersigned's own professional advisors, to the extent that the undersigned has deemed appropriate, the undersigned has made its own legal, tax, accounting and financial evaluation of the merits and risks of participation in the Exchange and the consequences of this Agreement. The Investor undersigned has considered the suitability of the Exchange Securities as an investment in light of its own circumstances and financial condition and the undersigned is able to bear the risks associated with an investment in the Exchange Securities and its authority to invest in the Exchange Securities.
3.13 The undersigned is acquiring the Exchange Securities solely for the undersigned’s own beneficial account, for investment purposes, and not with a view to, or for resale in connection with, any distribution of the Exchange Securities. The undersigned understands that its acquisition of the Shares has Exchange Securities have not been registered under the Securities Act or registered or qualified under any state securities law in reliance on laws by reason of specific exemptions therefrom, under the provisions thereof which exemptions may depend upon, among other things, in part upon the bona fide nature investment intent of the Investor's investment intent as expressed hereinundersigned and of the other representations made by the undersigned in this Agreement. Subject The undersigned understands that the Company is relying upon the representations and agreements contained in this Agreement (and any supplemental information) for the purpose of determining whether this transaction meets the requirements for such exemptions.
3.14 The undersigned understands that the Exchange Securities are restricted from transfer for a period of time under applicable federal securities laws and that the Securities Act and the rules of the SEC provide in substance that the undersigned may dispose of the Exchange Securities only pursuant to compliance with an effective registration statement under the Securities Act, applicable securities laws an exemption therefrom, after which certain state restrictions may apply. The undersigned understands that the Company has no obligation or intention to register any of the Exchange Securities, or to take action so as to permit sales pursuant to the Securities Act. Even if and when the respective rules and regulations promulgated thereunderExchange Securities become freely transferable, nothing contained herein shall be deemed a representation or warranty by such Investor to hold secondary market in the Shares Exchange Securities may not develop. Consequently, the undersigned understands that the undersigned must bear the economic risks of the investment in the Exchange Securities for any an indefinite period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Samples: Exchange Agreement
Representations, Warranties and Covenants of the Investor. 5.1. The Investor hereby represents and warrants to, and covenants with, the Company that: as follows:
(i) the The Investor is an "accredited investor" as defined in Regulation D promulgated under the Securities Act, or a non-U.S. person as defined in Regulation S promulgated under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares, including without limitation, the Confidential Private Placement Memorandum dated July 10, 2003, as supplemented by the Company, and all exhibits attached thereto and incorporated by reference therein (the "Memorandum")and information regarding Espotting Media, Inc.; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and signature page hereto for its own account for investment only and with no present intention of distributing any of such Shares, the Shares in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor is able, without materially impairing its financial condition to hold the Shares for an indefinite period of time and to suffer a complete loss of its investment; (iv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (v) the Investor has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (ivvi) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; (vii) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents SEC Documents, other publicly available information, and the representations and warranties of the Company contained herein, (viii) Investor acknowledges that the Company does not have audited financial statements for Espotting Media, Inc. and that Investor has decided to go forward with this transaction without such financial statements; and (ix) there is no assurance that the Company's pending acquisition of Espotting Media, Inc. will be consummated. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law laws in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the truth and accuracy of, and the Investor's compliance with, the representations, warranties, agreements and covenants of the Investor set forth in this Agreement and the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 6.2 The Investor acknowledges, represents and agrees acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells sells, or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 6.3 The Investor hereby covenants with the Company that the Investor has not been formed for the sole purpose of acquiring the Shares and covenants not to make any sale of the Shares without complying with the provisions of this Agreement and Agreement, including Section 8.2 hereof, provided that the Registration Rights Agreement and Company complies with its obligations under Section 8.1, without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that, subject to the limitations of Section 8.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 6.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery delivery, and performance of this Agreement, Agreement and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium moratorium, or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither 6.5 The Investor understands and agrees that all Shares may not be transferred by Investors in the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment absence of an open "put equivalent position" within the meaning of Rule 16a-1(h) effective registration statement under the Exchange Act) during Securities Act or evidence acceptable to the thirty (30) trading days immediately preceding Company and its counsel, which may include an opinion of counsel, that registration is not required. The Investor understands and agrees that the date Certificates representing Shares will contain the following restrictive legend: "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT."
6.6 The Investor hereby represents and warrants that execution and delivery of this Agreement by the Investor, the performance by the Investor of this Agreement and the consummation of the transactions contemplated hereby will not result in a material breach or otherwise has engaged violation of, or material conflict with, any of the terms or provisions of, or constitute a material default by the Investor under, any indenture, mortgage, deed of trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Investor or any of its properties is bound, any statute, or any judgment, decree, order, rule, or regulation or any court or governmental agency or body applicable to such Investor or any of its properties.
6.7 Investor will engage, not directly or indirectly, in any action designed tosell, offer to sell, solicit offers to buy, dispose of, loan, pledge, or which might be reasonably expected togrant any right with respect to (collectively, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in a "Disposition"), the Common Stock of the Company if doing so would be in violation of applicable securities laws the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity in violation of the Securities Act. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and otherwise will comply regardless of when such position was entered into) or any purchase, sale, or grant of any right (including without limitation any put or call option) with federal securities laws respect to the Common Stock of the Company or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Common Stock of the Company. The Investor acknowledges that the Shares shall bear a restrictive legend to the effect that the Shares have not been registered under the Securities Act of 1933, as amended and such Shares may not be sold or transferred in the holding absence of an effective registration statement or pursuant to an exemption from registration.
6.8 The Investor understands that nothing in this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Shares constitutes legal, tax, or investment advice. The Investor has consulted such legal, tax tax, and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.76.9 The Investor agrees to use the information contained in this Agreement and the Memorandum for the sole purpose of evaluating a possible investment in the Company's shares and for no other purpose. The Investor further agrees that the information contained in this Agreement and the Memorandum, and all information given to Investor regarding Espotting Media, Inc., is strictly confidential. The Investor further agrees that Investor is prohibited from reproducing or distributing the Memorandum, in whole or in part. The Investor further agrees that the existence and nature of all conversations regarding the Offering must be kept strictly confidential and that the federal securities laws impose restrictions on trading based on information regarding this offering. Specifically, Investor shall maintain in confidence all such information, together with any other non-public information regarding the Company obtained from the Company or its agents during the course of the financing represented hereby. The Company has caused such materials to be delivered to Investor in reliance upon such agreement and upon Rule 100(b)(2)(ii) of Regulation FD as promulgated by the Securities and Exchange Commission.
6.10 If the Investor is an individual, the Investor certifies that he or she is not nor to his or her knowledge has been designated, a "suspected terrorist" as defined in Executive Order 13224. If the Investor is a corporation, trust, partnership, limited liability company or other organization, the Investor certifies that, to the best of Investor's knowledge, the Investor has not been designated, and is not owned or controlled by, a "suspected terrorist" as defined in Executive Order 13224. The Investor hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, the Investor hereby represents, warrants and agrees that: (i) none of the cash or property that the Investor will pay or will contribute to the Company has been or shall be derived from, or related to, any activity that is deemed criminal under United States law; and (ii) no contribution or payment by the Investor to the Company, to the extent that they are within the Investor's control, shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001. The Investor shall promptly notify the Company if any of these representations ceases to be true and accurate regarding the Investor. The Investor agrees to provide the Company any additional information regarding the Investor that the Company deems necessary or convenient to ensure compliance with all applicable laws concerning money laundering and similar activities. The Investor understands and agrees that if at any time it is discovered that any of the foregoing representations are incorrect, or if otherwise required by applicable law or regulation related to money laundering similar activities, the Company may undertake appropriate actions to ensure compliance with applicable law or regulation, including but not limited to segregation and/or redemption of the Investor's investment in the Company. The Investor does not make or has not made further understands that the Company may release confidential information about the Investor and, if applicable, any representations or warranties with respect underlying beneficial owners, to proper authorities if the transactions contemplated hereby other than those specifically Company, in its sole discretion, determines that it is in the best interests of the Company in light of relevant rules and regulations under the laws set forth in Sections 5, 6 and 16(asubsection (ii) of this Agreement, or in the Confidentiality Agreement (as defined below)above.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants (as of the date hereof) to, and covenants agrees with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares Units presenting an investment decision like that involved in the purchase of the SharesUnits, including investments in securities issued by the Company and investments in comparable companies, (b) unless otherwise indicated through checking “None of the Above” at Item 10 on Exhibit A, is an “accredited investor” within the meaning of Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended, (c) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivd) the Investor has, in connection with its decision to purchase the number of Shares as Units set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations documents incorporated by reference therein and warranties the Offering Information and the representations, warranties, covenants and agreements of the Company contained herein. The Investor understands that its acquisition of in the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timePlacement Agency Agreement.
5.2. The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the SharesUnits, or possession or distribution of offering materials in connection with the issue of the Shares, Units in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Units or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants expense and (c) the Placement Agent is not authorized to make nor have they made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Units, except as set forth or incorporated by reference in the provisions of this Agreement and Preliminary Prospectus, any Issuer Free Writing Prospectus or the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithFinal Prospectus.
5.4. 4.3 (a) The Investor further represents is either an individual or an entity duly organized, validly existing and warrants to, in good standing under the laws of the jurisdiction of its organization and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor public policy underlying any person acting on its behalf law, rule or at its direction has engaged in any purchase or sale of Common Stock regulation (including without limitation any short salefederal or state securities law, rule or regulation). The Investor’s execution, pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date delivery and performance of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation and the consummation by it of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Investor’s certificate or articles of incorporation, bylaws or other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreementorganizational or charter documents, or (ii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Confidentiality Agreement Investor is subject (as defined belowincluding federal and state securities laws and regulations), or by which any property or asset of the Investor is bound or affected.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor Investor, together with its purchaser representative, if any, is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement Signature Page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page hereto and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company immediately of any material change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase AgreementSignature Page hereto, relied only upon the Exchange Act Documents Company Information provided to the Investor by the Company in contemplation of this offering and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached hereto Exhibit B, applicable securities laws which questionnaire is true and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timecorrect in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company Company, or any agents acting on behalf of the Company, that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement Agreement, including Section 7.2 hereof, and if selling the Shares pursuant to the Registration Rights Agreement and Statement, without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to it, and the be satisfied. The Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as rights to indemnity and contribution may be limited by state or federal securities laws or the public policy underlying such laws, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as ).
5.5 Investor will not, prior to the indemnification agreements effectiveness of the Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a "Disposition"), the Shares, nor will Investor herein may engage in any hedging or other transaction which is designed to or could reasonably be legally unenforceableexpected to lead to or result in a Disposition of Shares by the Investor or any other person or entity. Such prohibited hedging or other transactions would include, without limitation, effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to the Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Shares.
5.5. Neither the 5.6 The Investor nor any person acting on its behalf or at its direction has engaged understands that nothing in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, any other materials presented to the Investor in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of connection with the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Samples: Stock Purchase Agreement (Intrabiotics Pharmaceuticals Inc /De)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, to the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D promulgated under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed had the opportunity to request and considered review all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and cover page hereto for its own account, or for the account of others for whom it acts as investment advisor only, for investment only and with no present intention of distributing any of such Shares, or Shares in violation of the Securities Act nor does the Investor have any arrangement or understanding with any other persons regarding the distribution of such Shares; provided, that this representation and warranty shall not limit the Investor's right to sell the Shares pursuant to the Registration Statement or otherwise in compliance with applicable federal and state securities laws, (iii) the Investor has filled in all requested information on the Selling Stockholder Notice and Questionnaire attached hereto as Exhibit C (the "Questionnaire") for use in preparing the Registration Statement and the answers thereto are true and correct as of the date hereof and will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose be true and correct as of the Closing Date; (or solicit iv) the Investor will notify the Company promptly of any offers to buy,) material change in any of such information in the Questionnaire until such time as the Investor has sold all of its Shares except in compliance with or until the Securities Act, applicable state securities laws and Company is no longer required to keep the respective rules and regulations promulgated thereunderRegistration Statement effective; and (ivv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementcover page hereto, relied only upon the Exchange Act Documents SEC Documents, other publicly available information and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 5.2 The Investor acknowledges, represents and agrees acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue issuance of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will States, it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers the Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and Agreement, including Section 7.2 hereof and, without effectively causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then under the Securities Act to be satisfied, if applicable (unless the Investor is selling such Shares in a transaction not subject to itthe prospectus delivery requirement), and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the prospectus forming a part of the Registration Statement (the "Prospectus") until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, to the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as such enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investor herein may be legally unenforceable.
5.5. Neither the 5.5 The Investor nor any person acting on its behalf or at its direction has engaged understands that nothing in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, any other materials presented to the Investor in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of connection with the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. 5.6 The Company acknowledges Investor represents and agrees warrants that neither it, nor any of its affiliates (or any other third party acting on the instructions of the Investor does not make or has not made its affiliates), have entered into any representations Short Sales (as hereinafter defined) or warranties with respect otherwise traded in the Common Stock or acted in a manner that could reasonably be expected to result in downward price pressure on the Common Stock following the receipt of any information or documents related to the transactions sale of the Shares contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) herein. For purposes of this AgreementSection 5.6, or a "Short Sale" by the Investor shall mean a sale of Common Stock by the Investor that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by the Confidentiality Agreement (as defined below)Investor.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor (on its own behalf and, if applicable, on behalf of any beneficial purchaser for whom the Investor is acting as agent) acknowledges, represents and warrants to, and covenants agrees with, the Company and the Canadian Placement Agent that: :
4.1 The Investor (ia) has been independently advised as to the Investor is an "accredited investor" as defined restrictions with respect to trading in Regulation D under the Securities Act and the Warrant Shares imposed by applicable Canadian securities laws, (b) confirms that no representation (written or oral) has been made to it by or on behalf of the Company with respect thereto, (c) acknowledges that it is aware of the characteristics of the Shares, the Warrants and the Warrant Shares, the risks relating to an investment therein and of the fact that it may not be able to resell the Securities and the Warrant Shares except in accordance with limited exemptions under applicable Canadian securities laws and regulatory policy until expiry of the applicable hold period or restricted period and compliance with the other requirements of applicable Canadian securities laws, and (d) acknowledges and agrees that it is solely responsible (and the Company is not in any manner responsible) for compliance with such restrictions and will comply with such restrictions.
4.2 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and, if applicable, the Risk Acknowledgement Form and has requested, received, reviewed completed the Accredited Investor Certificate and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as Securities set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the information set forth in Section 3 this Agreement.
4.3 The Investor is an individual resident in the jurisdiction set forth as the Investor’s address on the Signature Page or a corporation with a permanent establishment in such jurisdiction and the purchase by and sale to the Investor of the Stock Purchase AgreementSecurities, relied upon the Exchange Act Documents and the representations any act, solicitation, conduct or negotiation directly or indirectly in furtherance of such purchase and warranties of the Company contained herein. sale has occurred only in such jurisdiction.
4.4 The Investor understands is either (a) purchasing as principal for its own account and not for the benefit of any other person or (b) a portfolio manager that its acquisition of the Shares has not been registered under the Securities Act or is registered or qualified exempted from registration as a portfolio manager under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable Canadian securities laws and the respective rules Investor is purchasing the Securities as an agent for accounts that are fully managed by it, provided that, as used herein an account is “fully managed” by the Investor only if the Investor makes the investment decisions for the account and regulations promulgated thereunder, nothing contained herein shall be deemed has full discretion to purchase or sell securities for the account without requiring the client’s express consent to a representation or warranty by such Investor to hold the Shares for any period of timetransaction.
5.2. 4.5 The Investor acknowledges, represents and agrees that no as long as the Company is an “OTC reporting issuer” as such term is defined in Multilateral Instrument 51-105 – Issuers Quoted in the U.S. Over-the-Counter Markets, any certificates representing the Securities and the Warrant Shares will bear legends, or the ownership statement issued under a direct registration system or other electronic book entry system relating to the Securities and the Warrant Shares will bear legend restriction notations, indicating that the resale of such Securities and the Warrant Shares is restricted, in form substantially similar to the following: “THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY IN OR FROM A JURISDICTION OF CANADA UNLESS THE CONDITIONS IN SECTION 13 OF MULTILATERAL INSTRUMENT 51-105 – ISSUERS QUOTED IN THE U.S. OVER-THE-COUNTER MARKETS ARE MET.”, and that if the Company ceases to be an “OTC reporting issuer”, any certificates representing the Securities and the Warrant Shares, or the ownership statement issued under a direct registration system or other electronic book entry system relating to the Securities and the Warrant Shares, may bear a legend or legend restriction notation, as applicable, indicating that the resale of such Securities and the Warrant Shares is restricted as required by applicable Canadian securities laws.
4.6 The Investor acknowledges that (a) the Securities are being offered in the Provinces of British Columbia, Alberta and Ontario for sale on a “private placement” basis only and that the sale and delivery of the Securities are subject to the availability of an exemption from the requirements to provide the Investor with a prospectus and to sell securities through a person or company registered to sell securities under applicable Canadian securities laws and (b) in issuing the Securities pursuant to this exemption, the Company is relying upon the Investor’s representations and warranties contained herein, and, as a consequence of acquiring the Securities pursuant to this exemption, that: (1) certain protections, rights and remedies provided by applicable Canadian securities laws will not be available to it; (2) it may not receive information that would otherwise be required to be provided to it under applicable Canadian securities laws; and (3) the Company is relieved from certain obligations that would otherwise apply under applicable Canadian securities laws.
4.7 (a) No action has been or will be taken in any jurisdiction outside the United States and Canada by the Company or the Placement Agents that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the Shares, Securities in any jurisdiction outside the United States and Canada where legal action by the Company for that purpose is required. Each Investor outside required and (b) the United States will comply with all applicable laws Canadian Placement Agent is not authorized to make and regulations has not made any representation, disclosure or use of any information in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Securities, except as set forth or incorporated by reference in the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithDisclosure Package.
5.4. (a) The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any U.S. federal or state securities law, rule or regulation).
5.5. Neither 4.9 The Investor understands that nothing in this Agreement, the Disclosure Package or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Securities constitutes legal, tax or investment advice. The Investor acknowledges that the Company’s counsel is acting as counsel to the Company only and that the Investor has consulted such independent legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesSecurities.
5.74.10 The Investor acknowledges that this Agreement requires the Investor to provide certain personal information to the Company. Such information is being collected by the Company for the purposes of completing the Offering, which includes, without limitation, determining the eligibility of the Investor to purchase the Securities under applicable Canadian securities laws and completing filings required by any securities regulatory authority. Personal information regarding the Investor may be disclosed by the Company to: (a) securities regulatory authorities (including the British Columbia Securities Commission (the “BCSC”) and, if applicable, the Ontario Securities Commission (the “OSC”)); (b) the Company’s Transfer Agent; (c) any government agency, board or other entity; and (d) any of the other parties involved in the Offering, including the Company and its legal counsel, and may be included in record books in connection with the Offering. By executing this Agreement, the Investor is deemed to be consenting to the foregoing collection, use and disclosure of such personal information.
4.11 The Investor acknowledges that it has been notified by the Company: (a) of the requirement to deliver to the BCSC and, if applicable, to the OSC, the full name, residential address and telephone number of the Investor, the number and type of Securities purchased, the Aggregate Purchase Price, the exemption relied upon and the date of distribution of the Securities; (b) that such information is being collected indirectly by the BCSC and, if applicable, the OSC, under the authority granted to it under applicable Canadian securities laws; (c) that such information is being collected for the purposes of the administration and enforcement of the securities legislation of the Province of British Columbia and, if applicable, the Province of Ontario; (d) that the BCSC can be contacted at British Columbia Securities Commission, P.O. Box 10142, Pacific Centre, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0, Telephone: (000) 000-0000, Toll free across Canada: 1-800-373-6393, Facsimile: (604) 899-658, and can answer any questions about the BCSC’s indirect collection of such information; and (e) that, if applicable, the OSC can be contacted through the Administrative Support Clerk at the Ontario Securities Commission, Xxxxx 0000, Xxx 00, 00 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X 0X0, (000) 000-0000, and can answer any questions about the OSC’s indirect collection of such information. By executing this Agreement, the Investor hereby authorizes the indirect collection of such information by the BCSC and, if applicable, the OSC.
4.12 The Investor represents and warrants that the Aggregate Purchase Price which will be advanced by the Investor to the Company hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the “PCMLA”) and acknowledges that the Company may in the future be required by law to disclose its name and agrees that Investor does not make or has not made any representations or warranties with respect other information relating to this Agreement and the transactions contemplated hereby hereby, on a confidential basis, pursuant to the PCMLA or other than those specifically set forth in Sections 5applicable legislation. To the best of the knowledge of the Investor, 6 and 16(anone of the subscription funds to be provided by the Investor (a) have been or will be derived from or related to any activity that is deemed criminal under the law of this AgreementCanada, the United States or any other jurisdiction, or (b) are being tendered on behalf of a person or entity who has not been identified to the Investor.
4.13 The Investor will promptly notify the Company if it discovers that any of the representations made by the Investor herein ceases to be true and provide the Company with appropriate information in the Confidentiality Agreement (as defined below)connection therewith.
Appears in 1 contract
Samples: Subscription Agreement (DelMar Pharmaceuticals, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement Signature Page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such SharesShares other than as contemplated in Section 7 of this Agreement; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page hereto and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents Company Information provided to the Investor by the Company in contemplation of this offering and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act of 1933, as amended (the "Securities Act"), or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached hereto Exhibit B, applicable securities laws which questionnaire is true and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timecorrect in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense. The Placement Agent is not authorized to make any representation or use any information in connection with the issue, placement, purchase and sale of the Shares.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with satisfying the provisions requirements of this Agreement the Securities Act and the Rules and Regulations thereunder, including in the event of resale under the Registration Rights Agreement and without complying with any Statement, the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the 5.5 The Investor nor any person acting on its behalf or at its direction has engaged understands that nothing in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, any other materials presented to the Investor in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of connection with the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) (A) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesShares and the Warrants, including investments in securities issued by the Company and investments in comparable companies, and subject to the accuracy of the Company’s representations and warranties, has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesShares and the Warrants and (B) the Company has made available to the Investor, prior to the date hereof, the opportunity to ask questions of and receive complete and correct answers from representatives of the Company concerning the terms and conditions of the Shares and the Warrants and to obtain any additional information relating to the financial condition and business of the Company and the Investor has such knowledge and experience in financial and business matters that the Investor is capable of evaluating the merits and risks of the investment in the Shares and the Warrants; (ii) the Investor is acquiring the number of Shares and the Warrants to purchase the number of Warrant Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Warrants or Warrant Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares, Warrants or Warrant Shares (other than pursuant to the Registration Statement or in compliance with applicable laws); (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares and the Warrants except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire, a form of which is attached hereto as Exhibit B (the “Investor Questionnaire”) and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date and the Filing Date; (v) upon request of the Company, the Investor will notify the Company of any change in any of the information provided to the Company pursuant to Section 7.1(a) until such time as the Investor has sold all of its Shares and Warrant Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares and the Warrants to purchase the number of Warrant Shares, each as set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares and the Warrants has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, Warrants or Warrant Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Warrants or Warrant Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers the Shares, Warrants or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares, Warrants or Warrant Shares without complying with the provisions of this Agreement and without causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement), and the Investor acknowledges that that, subject to removal in accordance with the terms hereof, the Warrants and certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) assuming the valid execution hereof by the Company, this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable).
5.5. 5.5 Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, transfer or establishment of an open "“put equivalent position" ” within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading 90 days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock(other than "program trades"). The Investor will not use any of the restricted Shares acquired pursuant to this Agreement Agreement, or the Warrant Shares acquired pursuant to the Warrants, to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares, Warrants and Warrant Shares.
5.65.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Warrant or any other materials presented to the Investor in connection with the purchase and sale of the Shares and the Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesShares and the Warrants.
5.7. 5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5this Agreement.
5.8 The Investor acknowledges the following disclosure, 6 and 16(awhich is set forth herein as required pursuant to Section 25102(a) of this Agreementthe California Corporate Securities Law of 1968 (provided that, or in subject to the Confidentiality Agreement (as defined below)accuracy of the Investors’ representations and warranties to the Company, the Company represents that the sale of the Shares is so exempt): 5.9 The Investor covenants that the Investor shall deliver to the Company the completed Investor Questionnaire prior to the Second Closing.
Appears in 1 contract
Samples: Securities Purchase Agreement (NxStage Medical, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesSecurities; (ii) the Investor is acquiring the number of Common Shares, each as Preferred Shares and Warrants set forth in Section 3 of the Stock Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Common Shares, Conversion Shares and Warrant Shares or until the Company is otherwise no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Common Shares, Preferred Shares as and Warrants set forth in Section Paragraph 3 of the Stock Securities Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its neither this Offering nor the acquisition of the Shares has not Securities have been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws herein and the respective rules information provided in the Investor’s Investor Questionnaire. Investor has completed or caused to be completed and regulations promulgated thereunderdelivered to the Company the Investor Questionnaire, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timewhich questionnaire is true, correct and complete in all material respects.
5.2. 5.2 The Investor acknowledges(other than individuals) is an entity duly organized, represents validly existing and agrees that no action has been or will be taken in any jurisdiction outside good standing under the United States by the Company that would permit an offering laws of the Shares, or possession or distribution jurisdiction of offering materials in connection its organization with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws full power and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby by this Agreement and has taken all necessary action otherwise to authorize the carry out its obligations thereunder. The execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement have been duly authorized by all necessary corporate or similar action on the part of the Investor. This Agreement has been duly executed by the Investor, and (ii) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor it in accordance with its terms, except (i) as enforceability may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' ’ rights generally, (ii) as limited by rules of law governing specific performance, injunctive relief, or other equitable remedies and contracting parties' rights generally and except as enforceability (iii) to the extent the indemnification provisions contained in this Agreement may be subject limited by applicable federal or state securities laws.
5.3 The Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is (i) acquiring the Securities and (ii) the shares of Common Stock receivable upon conversion or exercise thereof, in each case, for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof; provided, however, that by making the representations herein, the Investor does not agree to general principles hold any of equity (regardless the Securities for any minimum or other specific term and reserves the right to dispose of whether such enforceability the Securities under an exemption under the Securities Act and reserves the right to dispose of the Common Shares, Conversion Shares and Warrant Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. The Investor is considered acquiring the Securities hereunder in a proceeding the ordinary course of its business.
5.5 The Investor understands that the Securities are being offered and sold to it in equity or at law) reliance on specific exemptions from the registration requirements of United States federal and except as state securities laws and that the indemnification agreements Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein may be legally unenforceablein order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. 5.6 The Investor will not use any of and its advisors, if any, have been furnished with all publicly available materials relating to the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock business, finances and operations of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in such other publicly available materials relating to the holding offer and sale of the Shares.
5.6Securities as have been requested by the Investor. The Investor has consulted and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such legalinquiries nor any other due diligence investigations conducted by the Investor or its advisors, tax if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained herein. The Investor understands that its investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase the Securities involves a high degree of Sharesrisk.
5.7. 5.7 The Company acknowledges and agrees Investor understands that Investor does not make no United States federal or state agency or any other government or governmental agency has not passed on or made any representations recommendation or warranties with respect to endorsement of the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) Securities or the fairness or suitability of this Agreement, or the investment in the Confidentiality Agreement (as defined below)Securities, nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.14.1 INVESTOR KNOWLEDGE AND STATUS. The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor Act, is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like similar to that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companiesSecurities, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesSecurities; (ii) the Investor understands that the Securities are "restricted securities" and have not been registered under the Securities Act and is acquiring the number of Shares, each as Securities set forth in Section paragraph 3 of the Stock Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with only, has no present intention of distributing any of such Shares, or any Securities and has no arrangement or understanding with any other persons regarding the distribution of such SharesSecurities (this representation and warranty not limiting the Investor's right to sell Securities pursuant to a Registration Statement filed under the Registration Rights Agreement or otherwise, or other than with respect to any claim arising out of a breach of this representation and warranty, the Investor's right to indemnification under Section 3 of the Registration Rights Agreement); (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions in paragraph 4 of the Securities Purchase Agreement and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Securities or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as Securities set forth in Section paragraph 3 of the Stock Securities Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained hereinherein and the information contained in the SEC Reports. The Investor understands that its acquisition the issuance of the Shares Securities to the Investor has not been registered under the Securities Act Act, or registered or qualified under any state securities law law, in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of representations made by the Investor's investment intent as expressed hereinInvestor in this Agreement. Subject to compliance with No person (including without limitation the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States Placement Agent) is authorized by the Company to provide any representation that would permit an offering of is inconsistent with or in addition to those contained herein or in the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to itSEC Reports, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or it has not made received or relied on any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below)such representations.
Appears in 1 contract
Samples: Securities Purchase Agreement (Arcadia Resources, Inc)
Representations, Warranties and Covenants of the Investor. 5.1In order to induce the Company to accept this Agreement, the Investor hereby represents and warrants to, and covenants with, the Company as follows:
(a) The Investor has received and had the opportunity to review the Information Documents, and has been given access to full and complete information regarding the Company and has utilized such access to the Investor’s satisfaction for the purpose of obtaining such information regarding the Company as the Investor has reasonably requested; and, particularly, the Investor has been given reasonable opportunity to ask questions of, and receive answers from, representatives of the Company concerning the terms and conditions of this Agreement and to obtain any additional information, to the extent reasonably available;
(b) Except for the Company information described in the Information Documents, the Investor has not been furnished with any other materials or literature relating to the offer and sale of the Securities; except as set forth in this Agreement, no representations or warranties have been made to the Investor by the Company, or any agent, employee, or affiliate of the Company or such selling agent.
(c) The Investor believes that an investment in the Securities is suitable for the Investor based upon the Investor investment objectives and financial needs. The Investor (i) has adequate means for providing for the Investor’s current financial needs and personal contingencies; (ii) has no need for liquidity in this investment; (iii) at the present time, can afford a complete loss of such investment; and (iv) does not have an overall commitment to investments which are not readily marketable that is disproportionate to the Investor's net worth, and the Investor's investment in the Securities will not cause such overall commitment to become excessive.
(d) The Investor, in reaching a decision to subscribe, has such knowledge and experience in financial and business matters that the Investor is capable of reading and interpreting financial statements and evaluating the merits and risk of an investment in the Securities and has the net worth to undertake such risks.
(e) The Investor was not offered or sold the Securities, directly or indirectly, by means of any form of general advertising or general solicitation, including, but not limited to, the following: (1) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar medium of or broadcast over television or radio; or (2) to the knowledge of the undersigned, any seminar or meeting whose attendees had been invited by any general solicitation or general advertising.
(f) The Investor has obtained, to the extent the Investor deems necessary, the Investor’s own personal professional advice with respect to the risks inherent in the investment in the securities, and the suitability of an investment in the Securities in light of the Investor's financial condition and investment needs;
(g) The Investor recognizes that the Securities as an investment involves a high degree of risk, including those set forth under the caption "Risk Factors" in our annual report filed with the Securities and Exchange Commission on Form 10K, and, in addition to those Risk Factors, the Risk Factors as listed in Appendix III of this Agreement.
5.2 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares presenting securities representing an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companiesCompany, and has requested, received, reviewed and considered understood all information it deemed deems relevant in making an informed decision to purchase the SharesSecurities, including, without limitation, the information contained in the Information Documents; (ii) it acknowledges that the offering of the Securities pursuant to this Agreement has not been reviewed by the Commission or any state or Canadian regulatory authority; (iii) the Investor is acquiring the number of Shares, each as Securities set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and signature page hereto, for its own account for investment only and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the Securities the distribution of such Sharesthereof; (iiiiv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares securities which form such Securities except in compliance with the Securities Act, the Securities Act Rules and Regulations and any applicable state securities laws or blue sky laws; (v) the Investor has completed or caused to be completed the Stock Certificate Questionnaire, attached hereto as Appendix I, and the respective rules answers thereto are true and regulations promulgated thereundercorrect as of the date hereof; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares Securities set forth on the signature page hereof, not relied upon any representations or other information (whether oral or written) other than as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Information Documents and the representations and warranties of the Company contained herein. The ; (vii) the Investor understands that its acquisition has had an opportunity to discuss this investment with representatives of the Shares has Company and ask questions of them and such questions have been answered to the full satisfaction of the Investor; and (viii) the Investor is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act because such Investor meets at least one of the conditions set forth in Appendix II hereto.
5.3 The Purchase acknowledges that (1) the Securities have not been been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature provisions of the Investor's investment intent as expressed herein. Subject 1933 Act, and may not be transferred unless the Investor shall have delivered to compliance with the Company an opinion of counsel, reasonably satisfactory in form, scope and substance to the Company, to the effect that the Securities to be sold or transferred may be sold or transferred pursuant to Rule 144 promulgated under the 1933 Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make ; (2) any sale of the Shares without complying Securities made in reliance on Rule 144 promulgated under the 1933 Act may be made only in accordance with the provisions terms of this Agreement said Rule and further, if said Rule is not applicable, any resale of such Securities under circumstances in which the Registration Rights Agreement seller, or the person through whom the sale is made, may be deemed to be an underwriter, as that term is used in the 1933 Act, may require compliance with some other exemption under the 1933 Act or the rules and without complying with regulations of the Securities and Exchange Commission (“Commission” or the “SEC”) thereunder; and (3) neither the Company nor any prospectus delivery requirement then applicable other person is under any obligation to it, and register the Investor acknowledges that Securities under the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith1933 Act.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) the Investor is duly organized, validly existing and in good standing under the laws of the its jurisdiction of organization, and (iii) upon the execution and delivery of this Agreement, this Agreement constitutes shall constitute a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(a) The Investor recognizes that an investment in the Securities is speculative and except as the indemnification agreements involves a high degree of risk, including a risk of total loss of the Investor’s investment. The Investor herein may be legally unenforceablecan bear the economic risk of this investment and can afford a complete loss thereof. The Investor has such knowledge and prior substantial investment experience in financial and business matters, including investment in non-listed and non-registered securities, and has had the opportunity to read the SEC Documents and to evaluate the merits and risks of investment in the Company and the Shares.
5.5(b) All of the information provided to the Company or its agents or representatives concerning the Investor’s suitability to invest in the Company and the representations and warranties contained herein, are complete, true and correct as of the date hereof. Neither The Investor understands that the Company is relying on the statements contained herein to establish an exemption from registration under U.S. federal and state securities laws.
5.6 The address set forth in the signature page hereto is the Investor’s true and correct domicile.
5.7 Prior to the execution of this Purchase Agreement, the Investor nor and any person acting on its behalf or at its direction has engaged affiliates of Investor have not participated in any purchase or sale of hedging transactions involving the Company’s Common Stock (including without limitation and have not sold short any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Company’s Common Stock. The Investor will does not use have a present intention to sell the Securities, nor a present arrangement or intention to effect any distribution of any of the restricted Securities to or through any person or entity for purposes of selling, offering, distributing or otherwise disposing of any of the Securities.
5.8 The Investor understands and agrees that each certificate or other document evidencing any of the Securities shall be endorsed with the legend in substantially the form set forth below, as well as any other legends required by applicable law, and the Investor covenants that the Investor shall not transfer the Shares acquired represented by any such certificate without complying with the restrictions on transfer described in the legends endorsed on such certificates: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“SECURITIES ACT”), OR REGISTERED OR QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS OR CANADIAN SECURITIES LAWS. THESE SECURITIES MAY NOT BE TRANSFERRED UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND REGISTERED OR QUALIFIED UNDER APPLICABLE STATE LAW AND, IF APPLICABLE, CANADIAN SECURITIES LAWS OR (B) EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS ARE AVAILABLE. AS A CONDITION TO PERMITTING ANY TRANSFER OF THESE SECURITIES, THE COMPANY MAY REQUIRE THAT IT BE FURNISHED WITH AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO REGISTRATION OR QUALIFICATIONS IS LEGALLY REQUIRED FOR SUCH TRANSFER.
5.9 The Investor agrees not to trade any of the Securities to any person or company before the date which is 6 months from the Closing Date.
5.10 The Investor may be required to bear the economic risk of the investment indefinitely because none of the Securities may be sold, hypothecated or otherwise disposed of unless subsequently registered under the Securities Act and applicable state securities laws or an exemption from registration is available. Any resale of any of the Securities can be made only pursuant to this Agreement (i) a registration statement under the Securities Act which is effective and current at the time of sale or (ii) a specific exemption from the registration requirements of the Securities Act. In claiming any such exemption, the Investor will, prior to cover any short position offer or sale or distribution of any Securities advise the Company and, if requested, provide the Company with a favorable written opinion of counsel, in form and substance satisfactory to counsel to the Company, as to the applicability of such exemption to the proposed sale or distribution.
5.11 The Investor understands that the exemption afforded by Rule 144 promulgated by the Commission under the Securities Act (“Rule 144”) will not become available for at least six months from the date of payment for the Shares and any sales in reliance on Rule 144, if then available, can be made only in accordance with the terms and conditions of that rule, including, among other things, a requirement that the Company then be subject to, and current, in its periodic filing requirements under the Exchange Act, and, among other things, a limitation on the amount of shares of Common Stock that may be sold in specified time periods and the manner in which the sale can be made; that, while the Company’s Common Stock is registered under the Exchange Act and the Company is presently subject to the periodic reporting requirements of the Exchange Act, there can be no assurance that the Company if doing so would be will remain subject to such reporting obligations or current in violation of its filing obligations; and that, in case Rule 144 is not applicable securities laws and otherwise will comply with federal securities laws in the holding and sale to a disposition of the Shares, compliance with the registration provisions of the Securities Act or some other exemption from such registration provisions will be required.
5.65.12 The Investor has taken no action which would give rise to any claim by any person for brokerage commission, finder’s fees or similar payments by Investor relating to this Purchase Agreement or the transactions contemplated hereby. The Company shall have no obligation with respect to such fees or with respect to any claims made by or on behalf of other persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated hereby. The Investor has consulted shall indemnify and hold harmless the Company, its employees, officers, directors, agents, and partners, and their respective affiliates, from and against all claims, losses, damages, costs (including the costs of preparation and attorney’s fees) and expenses suffered in respect of any such legalclaimed or existing fees, tax as and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shareswhen incurred.
5.7. 5.13 The Company acknowledges execution, delivery and agrees that Investor does not make or has not made any representations or warranties with respect to performance of this Purchase Agreement by the Investor, and the consummation of the transactions contemplated hereby hereby, will not (i) violate any provision of the Investor’s corporate organizational documents, (ii) violate, conflict with or result in the breach of any of the terms of, result in a material modification of the effect of, otherwise, give any other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreementcontracting party the right to terminate, or in constitute (or with notice or lapse of time or both) a default under, any contract or other agreement to which the Confidentiality Agreement Investor is a party or by or to which the Investor or any of the Investor’s assets or properties may be bound or subject, (as defined below)iii) violate any order, judgment, injunction, award or decree of any court, arbitrator or governmental or regulatory body by which the Investor, or the assets or properties of the Investor are bound and (iv) to the Investor’s knowledge, violate any statute, law or regulation, including but not limited to the USA Patriot Act.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Flint Telecom Group Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor Investor, severally and not jointly with any other Investors, represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Rule 501(a) of Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and or investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and signature page hereto for its own account for investment only and with no present intention of distributing any of such Shares, Shares in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) immediately following the Closing the Investor will be the beneficial owner of the Shares purchased pursuant to this Agreement; (v) the Investor has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (vi) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvii) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents confidential Private Placement Memorandum dated December 16, 2003, the SEC Documents, other publicly available information and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed ’s representations, warranties and covenants herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 5.2 The Investor acknowledges, represents and agrees acknowledges that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and Agreement, including Section 7.2 hereof and, without effectively causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend or legends that prohibits prohibit their transfer except in accordance therewithwith the Securities Act and applicable state securities laws. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the prospectus forming a part of the Registration Statement (the “Prospectus”) until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus, in which case the Investor will be unable to effect a Disposition of the Shares under the Registration Statement.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as rights to indemnity and contribution may be limited by state or federal securities laws or the indemnification agreements public policy underlying such laws.
5.5 The Investor will not, prior to the effectiveness of the Registration Statement (as defined in Section 7.1(a)), sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a “Disposition”), the Shares or any other Common Stock of the Company in violation of the Securities Act, nor will Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged engage in any purchase hedging or sale other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity in violation of the Securities Act. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is covered or against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(hor call option or other derivative security) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant with respect to this Agreement to cover any short position in the Common Stock of the Company if doing so would be or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in violation of applicable securities laws and otherwise will comply this Agreement or any other materials presented to the Investor in connection with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. 5.7 The Company acknowledges and agrees that Investor does not make or has not made been presented with or solicited by or through any representations leaflet, public promotional meeting, or warranties television advertisement or, to the Investor’s knowledge, with any other form of communication which appeared to the Investor to constitute general solicitation or advertising with respect to the transactions contemplated hereby other than those specifically set forth Offering.
5.8 The Investor has not taken and will not take any action designed to or that might reasonably be expected to cause or result in Sections 5stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares, 6 and 16(a) in each case if taking such action would be in violation of this Agreement, or in the Confidentiality Agreement (as defined below)applicable securities laws.
Appears in 1 contract
Samples: Securities Purchase Agreement (Impco Technologies Inc)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor (on its own behalf and, if applicable, on behalf of any beneficial purchaser for whom the Investor is acting as agent) acknowledges, represents and warrants to, and covenants agrees with, the Company that: :
4.1 The Investor (ia) has been independently advised as to the Investor is an "accredited investor" as defined restrictions with respect to trading in Regulation D under the Securities Act and the Warrant Shares imposed by applicable Canadian securities laws, (b) confirms that no representation (written or oral) has been made to it by or on behalf of the Company with respect thereto, (c) acknowledges that it is aware of the characteristics of the Shares, the Warrants and the Warrant Shares, the risks relating to an investment therein and of the fact that it may not be able to resell the Securities and the Warrant Shares except in accordance with limited exemptions under applicable Canadian securities laws and regulatory policy until expiry of the applicable hold period or restricted period and compliance with the other requirements of applicable Canadian securities laws, and (d) acknowledges and agrees that it is solely responsible (and the Company is not in any manner responsible) for compliance with such restrictions and will comply with such restrictions.
4.2 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and, if applicable, the Risk Acknowledgement Form and has requested, received, reviewed completed the Accredited Investor Certificate and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as Securities set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the information set forth in Section 3 this Agreement.
4.3 The Investor is an individual resident in the jurisdiction set forth as the Investor’s address on the Signature Page or a corporation with a permanent establishment in such jurisdiction and the purchase by and sale to the Investor of the Stock Purchase AgreementSecurities, relied upon the Exchange Act Documents and the representations any act, solicitation, conduct or negotiation directly or indirectly in furtherance of such purchase and warranties of the Company contained herein. sale has occurred only in such jurisdiction.
4.4 The Investor understands is either (a) purchasing as principal for its own account and not for the benefit of any other person or (b) a portfolio manager that its acquisition of the Shares has not been registered under the Securities Act or is registered or qualified exempted from registration as a portfolio manager under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable Canadian securities laws and the respective rules Investor is purchasing the Securities as an agent for accounts that are fully managed by it, provided that, as used herein an account is “fully managed” by the Investor only if the Investor makes the investment decisions for the account and regulations promulgated thereunder, nothing contained herein shall be deemed has full discretion to purchase or sell securities for the account without requiring the client’s express consent to a representation or warranty by such Investor to hold the Shares for any period of timetransaction.
5.2. 4.5 The Investor acknowledges, represents and agrees that no as long as the Company is an “OTC reporting issuer” as such term is defined in Multilateral Instrument 51-105 – Issuers Quoted in the U.S. Over-the-Counter Markets, any certificates representing the Securities and the Warrant Shares will bear legends, or the ownership statement issued under a direct registration system or other electronic book entry system relating to the Securities and the Warrant Shares will bear legend restriction notations, indicating that the resale of such Securities and the Warrant Shares is restricted, in form substantially similar to the following: “THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY IN OR FROM A JURISDICTION OF CANADA UNLESS THE CONDITIONS IN SECTION 13 OF MULTILATERAL INSTRUMENT 51-105 – ISSUERS QUOTED IN THE U.S. OVER-THE-COUNTER MARKETS ARE MET.”, and that if the Company ceases to be an “OTC reporting issuer”, any certificates representing the Securities and the Warrant Shares, or the ownership statement issued under a direct registration system or other electronic book entry system relating to the Securities and the Warrant Shares, may bear a legend or legend restriction notation, as applicable, indicating that the resale of such Securities and the Warrant Shares is restricted as required by applicable Canadian securities laws.
4.6 The Investor acknowledges that (a) the Securities are being offered in the Provinces of British Columbia, Alberta and Ontario for sale on a “private placement” basis only and that the sale and delivery of the Securities are subject to the availability of an exemption from the requirements to provide the Investor with a prospectus and to sell securities through a person or company registered to sell securities under applicable Canadian securities laws and (b) in issuing the Securities pursuant to this exemption, the Company is relying upon the Investor’s representations and warranties contained herein, and, as a consequence of acquiring the Securities pursuant to this exemption, that: (1) certain protections, rights and remedies provided by applicable Canadian securities laws will not be available to it; (2) it may not receive information that would otherwise be required to be provided to it under applicable Canadian securities laws; and (3) the Company is relieved from certain obligations that would otherwise apply under applicable Canadian securities laws.
4.7 (a) No action has been or will be taken in any jurisdiction outside the United States and Canada by the Company that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the Shares, Securities in any jurisdiction outside the United States and Canada where legal action by the Company for that purpose is required. Each Investor outside required and (b) the United States will comply with all applicable laws and regulations Company has not made any representation, disclosure or use of any information in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Securities, except as set forth or incorporated by reference in the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithDisclosure Package.
5.4. (a) The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any U.S. federal or state securities law, rule or regulation).
5.5. Neither 4.9 The Investor understands that nothing in this Agreement, the Disclosure Package or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Securities constitutes legal, tax or investment advice. The Investor acknowledges that the Company’s counsel is acting as counsel to the Company only and that the Investor has consulted such independent legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesSecurities.
5.74.10 The Investor acknowledges that this Agreement requires the Investor to provide certain personal information to the Company. Such information is being collected by the Company for the purposes of completing the Offering, which includes, without limitation, determining the eligibility of the Investor to purchase the Securities under applicable Canadian securities laws and completing filings required by any securities regulatory authority. Personal information regarding the Investor may be disclosed by the Company to: (a) securities regulatory authorities (including the British Columbia Securities Commission (the “BCSC”) and, if applicable, the Ontario Securities Commission (the “OSC”)); (b) the Company’s Transfer Agent; (c) any government agency, board or other entity; and (d) any of the other parties involved in the Offering, including the Company and its legal counsel, and may be included in record books in connection with the Offering. By executing this Agreement, the Investor is deemed to be consenting to the foregoing collection, use and disclosure of such personal information.
4.11 The Investor acknowledges that it has been notified by the Company: (a) of the requirement to deliver to the BCSC and, if applicable, to the OSC, the full name, residential address and telephone number of the Investor, the number and type of Securities purchased, the Aggregate Purchase Price, the exemption relied upon and the date of distribution of the Securities; (b) that such information is being collected indirectly by the BCSC and, if applicable, the OSC, under the authority granted to it under applicable Canadian securities laws; (c) that such information is being collected for the purposes of the administration and enforcement of the securities legislation of the Province of British Columbia and, if applicable, the Province of Ontario; (d) that the BCSC can be contacted at British Columbia Securities Commission, P.O. Box 10142, Pacific Centre, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0, Telephone: (000) 000-0000, Toll free across Canada: 1-800-373-6393, Facsimile: (604) 899-658, and can answer any questions about the BCSC’s indirect collection of such information; and (e) that, if applicable, the OSC can be contacted through the Administrative Support Clerk at the Ontario Securities Commission, Xxxxx 0000, Xxx 00, 00 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X 0X0, (000) 000-0000, and can answer any questions about the OSC’s indirect collection of such information. By executing this Agreement, the Investor hereby authorizes the indirect collection of such information by the BCSC and, if applicable, the OSC.
4.12 The Investor represents and warrants that the Aggregate Purchase Price which will be advanced by the Investor to the Company hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the “PCMLA”) and acknowledges that the Company may in the future be required by law to disclose its name and agrees that Investor does not make or has not made any representations or warranties with respect other information relating to this Agreement and the transactions contemplated hereby hereby, on a confidential basis, pursuant to the PCMLA or other than those specifically set forth in Sections 5applicable legislation. To the best of the knowledge of the Investor, 6 and 16(anone of the subscription funds to be provided by the Investor (a) have been or will be derived from or related to any activity that is deemed criminal under the law of this AgreementCanada, the United States or any other jurisdiction, or (b) are being tendered on behalf of a person or entity who has not been identified to the Investor.
4.13 The Investor will promptly notify the Company if it discovers that any of the representations made by the Investor herein ceases to be true and provide the Company with appropriate information in the Confidentiality Agreement (as defined below)connection therewith.
Appears in 1 contract
Samples: Subscription Agreement (DelMar Pharmaceuticals, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company and the Placement Agent (as to itself), that: :
4.1. The Investor (ia) the Investor is an "“accredited investor" ” as such term is defined in Rule 501(a) of Regulation D D, promulgated under the Securities Act and the Investor Act, (b) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, (c) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivd) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws documents incorporated by reference therein and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timeOffering Information.
5.2. The Investor acknowledges, represents and agrees that no (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Shares, except as set forth or incorporated by reference in the provisions of this Agreement and the Registration Rights Agreement and without complying with Prospectus or any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithfree writing prospectus.
5.4. (a) The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock4.4. The Investor will not use understands that nothing in this Agreement, the Prospectus, the Disclosure Package, the Offering Information or any of other materials presented to the restricted Shares acquired pursuant to this Agreement to cover any short position Investor in connection with the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.74.5. Since the date on which the Placement Agent first contacted the Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales involving the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales in the securities of the Company acknowledges and agrees (including Short Sales) prior to the time that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement, or Agreement to cover any short position in the Confidentiality Agreement Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined belowin Rule 16a−1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
Appears in 1 contract
Samples: Subscription Agreement (Premier Power Renewable Energy, Inc.)
Representations, Warranties and Covenants of the Investor. 5.14.1 INVESTOR KNOWLEDGE AND STATUS. The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor understands that the Shares are "restricted securities" and the offer and sale thereof have not been registered under the Securities Act and is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement signature page hereto in the ordinary course of its business and for its own account for investment only and with only, has no present intention of distributing any of such Shares, or any Shares and has no arrangement or understanding with any other persons regarding the distribution of such SharesShares (this representation and warranty not limiting the Investor's right to sell Shares pursuant to the Registration Statement or otherwise, or other than with respect to any claim arising out of a breach of this representation and warranty, the Investor's right to indemnification under Section 6.3); (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the signature page hereto and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents SEC Reports, the Company's earnings press release dated August 14, 2001, and the representations and warranties of the Company contained herein. The Investor understands that its acquisition the issuance of the Shares to the Investor has not been registered under the Securities Act Act, or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject The Placement Agent is not authorized to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a make any representation or warranty by such Investor to hold the Shares for use any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials information in connection with the issue of the Sharesplacement, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6, and no person is authorized to provide any representation which is inconsistent or in addition to those herein or in the SEC Reports. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or it has not made received or relied on any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below)such representations.
Appears in 1 contract
Samples: Stock Purchase Agreement (Act Teleconferencing Inc)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed investment decision to purchase the SharesSecurities; (ii) the Investor is acquiring the number of Shares, each Securities as set forth in Section 3 of the Stock Purchase this Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares Securities as set forth in Section 3 of the Stock Purchase this Agreement, relied only upon the documents filed by the Company under the Securities Exchange Act Documents of 1934, as amended, since January 1, 2011 and has had the opportunity to consult with management regarding the disclosures in the foregoing documents prior to making its investment decision and the representations and warranties of the Company contained herein. The Investor understands that its neither the Offering nor the acquisition of the Shares has not Securities have been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledgesis an entity duly organized, represents validly existing and agrees that no action has been or will be taken in any jurisdiction outside good standing under the United States by the Company that would permit an offering laws of the Shares, or possession or distribution jurisdiction of offering materials in connection its organization with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws full power and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby by this Agreement and has taken all necessary action the other Transaction Documents and otherwise to authorize the carry out its obligations hereunder. The execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement and any of the Transaction Documents to be performed by the Investor have been duly authorized by all necessary corporate or similar action on the part of the Investor. This Agreement and any of the Transaction Documents have been duly executed by the Investor, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against when delivered by the Investor in accordance with its the terms hereof, will constitute the valid and legally binding obligation of the Investor, enforceable against it in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) ).
5.3. The Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement, including, without limitation any document filed under the Securities Act of 1933, as amended ("Securities Act").
5.4. The Investor is acquiring the Securities for its own account and except as not with a view towards, or for resale in connection with, the indemnification agreements public sale or distribution thereof in violation of the Investor herein may be legally unenforceableSecurities Act.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable United States federal and state securities laws and otherwise will comply with federal securities laws that the Company is relying in part upon the holding truth and sale accuracy of, and the Investor's compliance with, the representations, warranties, agreements, acknowledgments and understandings of the SharesInvestor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.6. The Investor has consulted and its advisors, if any, have been furnished with all publicly available materials relating to the business, finances and operations of the Company and such legalother publicly available materials relating to the offer and sale of the. The Investor and its advisors, tax and investment advisors as itif any, in its sole discretion, has deemed acknowledge that they have had full access to all the information they consider necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not to make or has not made any representations or warranties an informed investment decision with respect to the transactions contemplated hereby by this Agreement and the Transaction Documents, including the Company's publicly available documents, which are available on the website of the Securities and Exchange Commission at xxx.xxx.xxx. The Investor and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other than those specifically set forth in Sections 5due diligence investigations conducted by the Investor or its advisors, 6 and 16(a) of this Agreementif any, or its representatives shall modify, amend or affect the Investor's right to rely on the Company's representations and warranties contained herein. The Investor understands that its investment in the Confidentiality Agreement (as defined below)Securities involves a high degree of risk.
5.7. The Investor understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Preferred Shares or the fairness or suitability of the investment in the Securities, nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (Igi Laboratories, Inc)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Rule 501(a) of Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and or investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and signature page hereto for its own account for investment only and with no present intention of distributing any of such Shares, Shares in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor is the beneficial owner of the Shares purchased pursuant to this Agreement; (v) the Investor has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (vi) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvii) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents confidential Private Placement Memorandum dated April 23, 2002, the SEC Documents, other publicly available information and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 5.2 The Investor acknowledges, represents and agrees acknowledges that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and Agreement, including Section 7.2 hereof and, without effectively causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithwith the Securities Act and applicable state securities laws. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein rights to indemnity and contribution may be legally unenforceablelimited by state or federal securities laws or the public policy underlying such laws.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. 5.5 The Investor will not use any not, prior to the effectiveness of the restricted Shares acquired pursuant Registration Statement, sell, offer to this Agreement sell, solicit offers to cover buy, dispose of, loan, pledge or grant any short position in right with respect to (collectively, a "Disposition"), the Common Stock of the Company if doing so would be in violation of applicable securities laws the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity in violation of the Securities Act. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and otherwise will comply regardless of when such position was entered into) or any purchase, sale or grant of any right (including without limitation any put or call option) with federal securities laws respect to the Common Stock of the Company or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in this Agreement or any other materials presented to the holding Investor in connection with the purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. 5.7 The Company acknowledges and agrees Investor is not an officer, director or "affiliate" (as that term is defined in Rule 405 of the Securities Act) of the Company.
5.8 The Investor does not make or has not made been presented with or solicited by or through any representations leaflet, public promotional meeting, or warranties television advertisement or, to the Investor's knowledge, with any other form of communication which appeared to the Investor to constitute general solicitation or advertising with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below)Offering.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws documents incorporated by reference therein and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timeOffering Information.
5.2. The Investor acknowledges, represents and agrees that no (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Shares, except as set forth or incorporated by reference in the provisions of this Agreement and Base Prospectus, the Registration Rights Agreement and without complying with Prospectus Supplement or any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithfree writing prospectus.
5.4. (a) The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package, the Offering Information or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. 4.5 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than those specifically set forth its legal, accounting and other advisors) and has not engaged in Sections 5any purchases or sales of the securities of the Company (including, 6 and 16(a) of this Agreementwithout limitation, or in the Confidentiality Agreement any Short Sales (as defined belowherein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
Appears in 1 contract
Samples: Subscription Agreement (Catalyst Pharmaceutical Partners, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor hereby represents and warrants to, and covenants with, the Company that: as follows:
(i) the The Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the SharesCommon Stock and Warrants, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesCommon Stock and Warrants, including without limitation, the Memorandum and the Company's SEC Documents all delivered to the Investor; (ii) the Investor is acquiring the number of Shares, each as shares of Common Stock and Warrants set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and signature pages hereto for its own account for investment only and with no present intention of distributing any of such Sharesthe shares of Common Stock, Warrants and shares of Common Stock issuable upon exercise of the Warrants, in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of such Sharesthe shares of Common Stock, Warrants and the shares of Common Stock issuable upon exercise of the Warrants; (iii) the Investor's answers to each of the questions on the signature pages to this Agreement are true, correct and complete as of the date of this Agreement, (iv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Common Stock, Warrants and shares of Common Stock issuable upon exercise of the Warrants except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (v) the Investor has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (vi) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Common Stock, Warrants and shares of Common Stock issued upon exercise of the Warrants or until the Company is no longer required to keep the Registration Statement effective; and (ivvii) the Investor has, in connection with its decision to purchase the number of Shares as shares of Common Stock and Warrants set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents SEC Documents, other publicly available information and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares Common Stock and Warrants has not been registered under the Securities Act or registered or qualified under any state securities law laws in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the truth and accuracy of, and the Investor's compliance with, the representations, warranties, agreements and covenants of the Investor set forth in this Agreement and the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 5.2 The Investor acknowledges, represents and agrees acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesCommon Stock and Warrants, or possession or distribution of offering materials in connection with the issue issuance of the SharesCommon Stock and Warrants, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares the shares of Common Stock and Warrants or has in its possession or distributes any offering material, in all cases at its own expense.
5.35.3 The Investor represents and warrants that neither Investor nor any person affiliated with or acting at the direction of Investor traded in the Common Stock of the Company at any time within the 30 days prior to the date of this Agreement, including without limitation any sales of Common Stock, any short sales of Common Stock or any other transactions that may have the effect of affecting the trading pricing of the Common Stock of the Company. The Investor hereby covenants with the Company not to make any sale of the Shares Common Stock and Warrants without complying with the provisions of this Agreement and Agreement, including SECTION 7.2 hereof, provided that the Registration Rights Agreement and Company complies with its obligations under SECTION 7.1, without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Shares Common Stock and Warrants will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that, subject to the limitations of SECTION 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither 5.5 Investor will not, prior to the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale effectiveness of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engageRegistration Statement, directly or indirectly, in sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any action designed toright with respect to (collectively, or which might be reasonably expected toa "Disposition"), cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity in violation of the Securities Act. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to the Common Stock of the Company or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Common Stock of the Company. The Investor acknowledges that the Common Stock, Warrants and shares of Common Stock issuable upon exercise of the Warrants shall bear a restrictive legend to the effect that the Common Stock, Warrants and Common Stock issuable upon exercise of the Warrants have not been registered under the Securities Act of 1933, as amended and such securities laws and otherwise will comply with federal securities laws may not be sold or transferred in the holding absence of an effective registration statement or pursuant to an exemption from registration.
5.6 The Investor understands that nothing in this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Common Stock and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesthe Common Stock and Warrants.
5.75.7 The Investor shall hold in strict confidence all information concerning this Agreement and the Offering of the Common Stock and Warrants until the earlier of such time as the Company has made a public announcement concerning this Agreement or the Offering of the Common Stock and Warrants.
5.8 If the Investor is an individual, the Investor certifies that he or she is not nor to his or her knowledge has been designated, a "suspected terrorist" as defined in Executive Order 13224. If the Investor is a corporation, trust, partnership, limited liability company or other organization, the Investor certifies that, to the best of its knowledge, the Investor has not been designated, and is not owned or controlled by, a "suspected terrorist" as defined in Executive Order 13224. The Investor hereby acknowledges that the Company acknowledges seeks to comply with all applicable laws covering money laundering and related activities. In furtherance of those efforts, the Investor hereby represents, warrants and agrees that: (a) none of the cash or property that the Investor will pay or will contribute to the Company has been or shall be derived from, or related to, any activity that is deemed criminal under United States law; and (b) no contribution or payment by the Investor to the Company, to the extent that they are within the Investor's control, shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001. The Investor shall promptly notify the Company if any of these representations ceases to be true and accurate regarding the Investor. The Investor agrees to provide the Company any additional information regarding the Investor that the Company deems necessary or convenient to ensure compliance with all applicable laws concerning money laundering and similar activities. The Investor understands and agrees that if at any time it is discovered that any of the foregoing representations are incorrect, or if otherwise required by applicable law or regulation related to money laundering similar activities, the Company may undertake appropriate actions to ensure compliance with applicable law or regulation, including but not limited to segregation and/or redemption of the Investor's investment in the Company. The Investor does not make or has not made further understands that the Company may release confidential information about the Investor and, if applicable, any representations or warranties with respect underlying beneficial owners, to proper authorities if the transactions contemplated hereby other than those specifically Company, in its sole discretion, determines that it is in the best interest of the Company in light of relevant rules and regulations under the laws set forth in Sections 5, 6 and 16(asubsection (b) of this Agreement, or in the Confidentiality Agreement (as defined below)above.
Appears in 1 contract
Samples: Securities Purchase Agreement (Avax Technologies Inc)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants (as of the date hereof) to, and covenants agrees with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agents that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares Units presenting an investment decision like that involved in the purchase of the SharesUnits, including investments in securities issued by the Company and investments in comparable companies, (b) unless otherwise indicated through checking “None of the Above” at Item 10 on Exhibit A, is an “accredited investor” within the meaning of Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended, (c) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivd) the Investor has, in connection with its decision to purchase the number of Shares as Units set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations documents incorporated by reference therein and warranties the Offering Information and the representations, warranties, covenants and agreements of the Company contained herein. The Investor understands that its acquisition of in the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timePlacement Agency Agreement.
5.2. The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the SharesUnits, or possession or distribution of offering materials in connection with the issue of the Shares, Units in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Units or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants expense and (c) the Placement Agents are not authorized to make nor have they made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Units, except as set forth or incorporated by reference in the provisions of this Agreement and Preliminary Prospectus, any Issuer Free Writing Prospectus or the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithFinal Prospectus.
5.4. (a) The Investor further represents is either an individual or an entity duly organized, validly existing and warrants to, in good standing under the laws of the jurisdiction of its organization and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation). The Investor’s execution, delivery and performance of this Agreement and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Investor’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Investor is subject (including federal and state securities laws and regulations), or by which any property or asset of the Investor herein may be legally unenforceableis bound or affected.
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesUnits.
5.74.5 If the Investor has previously received any material non-public information since the time at which the Placement Agents first contacted the Investor about the Offering, the Investor has not disclosed any of such material non-public information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any transactions involving the securities of the Company (including, without limitation, any Short Sales (defined below) involving the Company’s securities). The Company acknowledges and agrees Investor covenants that Investor does not make or has not made any representations or warranties with respect to it will (i) maintain the confidentiality of all material non-public information acquired as a result of the transactions contemplated hereby other than those specifically set forth herein and (ii) not engage in Sections 5any purchases or sales of the securities of the Company (including Short Sales), 6 and 16(a) in each case prior to the time that such material non-public information is publicly disclosed. The Investor agrees that it will not use any of the Units acquired pursuant to this Agreement, or Agreement to cover any short position in the Confidentiality Agreement Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined belowin Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.6 Investor acknowledges that a portion of the identifying information set forth on the Signature Page is being requested in connection with the USA Patriot Act, Pub.L.107-56 (the “Patriot Act”), and Investor agrees to provide any additional information requested by the Company or the Placement Agents in connection with the Patriot Act or any similar legislation or regulation to which Company or the Placement Agents is subject, in a timely manner. Investor hereby represents that the identifying information set forth on the Signature Page, including without limitation, its Taxpayer Identification Number assigned by the Internal Revenue Service or any other taxing authority, is true and complete on the date hereof and will be true and complete at the time of the Closing.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesShares and Warrants, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesShares and Warrants; (ii) the Investor is acquiring the number of Shares, each as Shares and Warrants set forth in Section 3 of the Stock Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares and Warrant Shares (other than pursuant to the Registration Statement) or any arrangement or understanding with any other persons regarding the distribution of such Shares and Warrant Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares and Warrant Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date and the Filing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares and Warrant Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as and Warrant Shares set forth in Section 3 of the Stock Securities Purchase Agreement, Agreement relied only upon the Exchange Act SEC Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares and Warrants has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares and Warrants for any period of time.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, Warrants and Warrant Shares or possession or distribution of offering materials in connection with the issue of the Shares, Warrants and Warrant Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares, Warrants or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares, Warrants and Warrant Shares without complying with the provisions of this Agreement and without causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement), and the Investor acknowledges that the certificates evidencing the Shares, Warrants and Warrant Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and generally, except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither 5.5 Between the time the Investor nor any person acting on its behalf or at its direction learned about the Offering and the public announcement of the Offering, the Investor has not engaged in any purchase short sales or sale of similar transactions with respect to the Common Stock (including without limitation any short sale)Stock, pledge, transfer, establishment of an open "put equivalent position" within nor has the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engageInvestor, directly or indirectly, caused any person to engage in any action designed to, short sales or which might be reasonably expected to, cause or result in any manipulation of the price of similar transactions with respect to the Common Stock. The Without limiting the foregoing, Investor will not use any of the restricted Shares acquired pursuant to this Agreement or Warrant Shares acquired pursuant to the Warrants to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and will otherwise will comply with federal securities laws in the holding and sale of the Shares or Warrant Shares.
5.65.6 The Investor understands that nothing in the SEC Documents, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants or the issuance of the Warrant Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesthe Shares and Warrants.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agents as of the date hereof that:
4.1. The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations documents incorporated by reference therein and warranties of the Company contained herein. Offering Information.
(a) The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees acknowledges that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants expense and (c) none of the Placement Agents is authorized to make or has made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Shares, except as set forth or incorporated by reference in the provisions of this Agreement and Base Prospectus, any Issuer Free Writing Prospectus or the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithProspectus Supplement.
5.4. (a) The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.54.4. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale)The making, pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date execution and performance of this Agreement or otherwise has engaged or by the Investor and the consummation of the transactions contemplated herein will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause not conflict with or result in a breach or violation of any manipulation of the price terms and provisions of, or constitute a default under, (i) the charter, bylaws or other organizational documents of such Investor, as applicable, or (ii) any law, order, rule, regulation, writ, injunction, judgment or decree of any court, administrative agency, regulatory body, government or governmental agency or body, domestic or foreign, having jurisdiction over such Investor or its properties, except for any conflict, breach, violation or default which is not reasonably likely to have a material adverse effect on such Investor’s performance of its obligations hereunder or the consummation of the Common Stocktransactions contemplated hereby.
4.5. The Investor will not use understands that nothing in this Agreement, the Prospectus or any of other materials presented to the restricted Shares acquired pursuant to this Agreement to cover any short position Investor in connection with the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.74.6. Since the first date on which a Placement Agent contacted the Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any transactions involving the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities). The Company acknowledges and agrees Investor covenants that Investor does not make or has not made any representations or warranties with respect to it will (i) maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby other than those specifically set forth herein and (ii) will not engage in Sections 5any purchases or sales of the securities of the Company (including Short Sales), 6 and 16(a) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement, or Agreement to cover any short position in the Confidentiality Agreement Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined belowin Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Rule 501 of Regulation D under the Securities Act and that the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesUnits, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesUnits; (ii) the Investor has carefully read and fully understands the risks involved with an investment in the Company including, without limitation, the risks identified on Annex II, attached hereto, (iii) the Investor is acquiring the number of Shares, each as Units set forth in Section 3 of the Stock Signature Page to the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Units or any arrangement or understanding with any other persons regarding the distribution of such SharesUnits; (iiiiv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Units except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (v) all of the representations made by the Investor are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as Units set forth in Section 3 of the Stock Signature Page to the Securities Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands There are no suits, pending litigation, or claims against the undersigned that its acquisition of could materially affect the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature net worth of the Investor's investment intent as expressed herein.
5.2 The Investor acknowledges that it has had access to the Exchange Act Documents and has carefully reviewed the same. Subject The Investor further acknowledges that the Company has made available to compliance with it the Securities Act, applicable securities laws opportunity to ask questions of and receive answers from the Company’s officers and directors concerning the terms and conditions of this Agreement and the respective rules business and regulations promulgated thereunderfinancial condition of the Company, nothing contained herein shall be deemed and the Investor has received to its satisfaction, such information about the business and financial condition of the Company and the terms and conditions of the Agreement as it has requested. The Investor has carefully considered the potential risks relating to the Company and a representation or warranty by such Investor to hold purchase of the Shares for any period Units, and fully understands that the Units are speculative investments, which involve a high degree of timerisk of loss of the Investor’s entire investment. Among others, the undersigned has carefully considered each of the risks identified under the caption “Risk Factors” in the Exchange Act Documents and Annex II.
5.2. 5.3 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesUnits, or possession or distribution of offering materials in connection with the issue issuance of the SharesUnits, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Units, Shares, Warrants or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.4 The Investor hereby covenants with the Company not to make any sale of the Units, Shares, Warrants or Warrant Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to itAgreement, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The overall commitment of the Investor to investments, which are not readily marketable, is not excessive in view of the Investor’s net worth and financial circumstances, and any purchase of the Units will not cause such commitment to become excessive. The Investor is able to bear the economic risk of an investment in the Units.
5.4. 5.5 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable).
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.6 Investor will not use any of the restricted Shares or Warrant Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws laws.
5.7 The Investor understands that nothing in the holding Exchange Act Documents, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesthe Units.
5.75.8 The Investor understands that the issuance of the Units to the Investor has not been registered under the Securities Act in reliance upon one or more specific exemptions therefrom, including Regulation D and/or Regulation S, which exemption depends upon, among other things, the accuracy of the Investor’s representations made in this Agreement. The Investor understands that the Units must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, or unless an exemption from such registration and qualification requirements is otherwise available. The Investor acknowledges that the Company has no obligation to register or qualify the Units or underlying Shares or Warrant Shares for resale. The Investor acknowledges and agrees that Investor does not make the Company will refuse to register any transfer of Units, Shares or has Warrant Shares that is not made any representations or warranties in accordance with respect the provisions of Regulation S, registered pursuant to the transactions contemplated hereby Securities Act or otherwise exempt from such registration. The Investor further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Shares or Warrant Shares, and requirements relating to the Company which are outside of the Investor’s control, and which the Company is under no obligation and may not be able to satisfy. The Investor has been independently advised as to the applicable holding period imposed in respect of the Shares by securities legislation in the jurisdiction in which the undersigned resides and confirms that no representation has been made respecting the applicable holding periods for the Shares or Warrant Shares in such jurisdiction and it is aware of the risks and other than those specifically set forth characteristics of the Units and of the fact that the undersigned may not resell the Units, Shares or Warrant Shares except in Sections 5accordance with applicable securities legislation and regulatory policy.
5.9 A copy of the Company’s annual report on Form 10-K, 6 its quarterly reports on Form 10-Q, current reports on Form 8-K and 16(ainformation statements are available on the SEC’s website at xxx.xxx.xxx.
5.10 For purposes of compliance with the Regulation S exemption for the offer and sale of the Units (defined in this Section 5.10 to include the underlying Shares and Warrant Shares) to non-U.S. Persons, if the Investor is not a “U.S. Person,” as such term is defined in Rule 902(k) of this AgreementXxxxxxxxxx X,0 the Investor represents and warrants that the Investor is a person or entity that is outside the United States, or in the Confidentiality Agreement (and further represents and warrants as defined below).follows:
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.14.1 INVESTOR KNOWLEDGE AND STATUS. The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor Act, is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like similar to that involved in the purchase of the SharesSecurities, including investments in securities issued by has had the Company opportunity to ask questions and investments in comparable companiesreceive answers concerning the terms and conditions of the Offering, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesSecurities; (ii) the Investor understands that the Securities are "restricted securities" and have not been registered under the Securities Act and is acquiring the number of Shares, each as Securities set forth in Section paragraph 3 of the Stock Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with only, has no present intention of distributing any of such Shares, Securities (or any Warrant Shares) and has no arrangement or understanding with any other persons regarding the distribution of such Securities (or any Warrant Shares) (provided, however, that by making the representations herein, the Investor does not agree to hold any of the Securities (or any Warrant Shares) for any minimum or other specific term and reserves the right to dispose of the Securities (and any Warrant Shares) at any time in accordance with or pursuant to an effective registration statement or an exemption under the Securities Act); (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities (or any Warrant Shares) except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions in paragraph 4 of the Securities Purchase Agreement and the Investor Questionnaire attached hereto as Exhibit C for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares and Warrant Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as Securities set forth in Section paragraph 3 of the Stock Securities Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained hereinherein and the information contained in the Private Placement Memorandum and in the SEC Reports. The Investor understands that its acquisition the issuance of the Securities and the Warrant Shares to the Investor has not been registered under the Securities Act Act, or registered or qualified under any state securities law law, in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature representations made by the Investor in this Agreement. No person (including without limitation any of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States Placement Agents) is authorized by the Company to provide any representation that would permit an offering of the Shares, is inconsistent with or possession or distribution of offering materials in connection with the issue of the Sharesaddition to those contained herein, in any jurisdiction outside the United States where legal action by Private Placement Memorandum or in the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to itSEC Reports, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or it has not made received or relied on any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below)such representations.
Appears in 1 contract
Samples: Securities Purchase Agreement (Global Entertainment Corp)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and signature page hereto for its own account for investment only and with no present intention of distributing any of such Shares, Shares in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of such Shares; provided, however, that the foregoing shall not obligate the Investor to hold the Shares for any period of time or to otherwise restrict the disposition thereof; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents SEC Documents, other publicly available information and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 5.2 The Investor acknowledges, represents and agrees acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and Agreement, including Section 7.2 hereof, provided that the Registration Rights Agreement and Company complies with its obligations under Section 7.1, without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither 5.5 Investor will not, prior to the Investor nor effectiveness of the Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock right with respect to (including without limitation any short salecollectively, a "Disposition"), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity in violation of the Securities Act. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and otherwise will comply regardless of when such position was entered into) or any purchase, sale or grant of any right (including without limitation any put or call option) with federal securities laws respect to the Common Stock of the Company or with respect to any security (other than a broad- based market basket or index) that includes, relates to or derives any significant part of its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in this Agreement or any other materials presented to the holding Investor in connection with the purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesSecurities; (ii) the Investor is acquiring the number of Shares, each as Securities set forth in Section 3 of the Stock Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Securities or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as Securities set forth in Section 3 of the Stock Securities Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares Securities has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire, applicable securities laws which questionnaire is true, correct and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timecomplete in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the SharesSecurities, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares Securities without complying with the provisions of this Agreement and without causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Shares Securities will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.5 Investor will not use any of the restricted Shares Securities acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws laws.
5.6 The Investor understands that nothing in the holding Exchange Act Documents, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesSecurities.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents Placement Memorandum and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire contained in Exhibit D to the Placement Memorandum, applicable securities laws which questionnaire is true and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timecorrect in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).in
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 4.1 The Investor represents and warrants to, and covenants with, the Company that: that (ia) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; , (iib) the Investor is acquiring has answered all questions on the number of Shares, each as set forth Signature Page and Exhibit A attached hereto for use in Section 3 preparation of the Stock Purchase Agreement in Prospectus Supplement and the ordinary course answers thereto are true and correct as of its business the date hereof and for its own account for investment only will be true and with no present intention correct as of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; Closing Date and (iiic) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor hasInvestor, in connection with its decision to purchase the number of Shares as set forth in Section 3 on the Signature Page, relied only upon any or all of the Stock Purchase following: the Registration Statement, the Base Prospectus, the Prospectus Supplement, the Company’s regular reports on Forms 20-F and 6-K as filed by the Company with the Commission, any Time of Sale Information (as defined in the Placement Agreement, relied upon ) provided to the Exchange Act Documents Investor and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 4.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants Placement Agent is not authorized to make and has not made any representation or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and Shares, except as set forth or incorporated by reference in the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to itStatement, and the Investor acknowledges that Base Prospectus, the certificates evidencing Prospectus Supplement or the Shares will be imprinted with a legend that prohibits their transfer except Time of Sale Information (as defined in accordance therewiththe Placement Agreement).
5.4. 4.3 The Investor further represents and warrants to, and covenants with, the Company that (ia) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the 4.4 The Investor nor any person acting on its behalf or at its direction has engaged understands that nothing in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, any other materials presented to the Investor in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of connection with the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges 4.5 Each Investor represents, warrants and agrees that, since the earlier to occur of (i) the date on which the Placement Agents first contacted such Investor about the Offering and (ii) the date that Investor does not make or has not made any representations or warranties with respect is the fifth (5th) trading day prior to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) date of this Agreement, or it has not engaged in any transactions in the Confidentiality securities of the Company (including, without limitation, any Short Sales involving the Company’s securities). Each Investor covenants that it will not engage in any transactions in the securities of the Company (including Short Sales), except for transactions entered into on behalf of the Investor by third-party managers exercising investment discretion on behalf of the Investor, prior to the time that the transactions contemplated by this Agreement are publicly disclosed. Each Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement to cover any short position in the Ordinary Shares if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined belowin Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.
Appears in 1 contract
Samples: Placement Agency Agreement (Progen Pharmaceuticals LTD)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Rule 501(a) of Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement Signature Page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page hereto and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and Exhibit B is expressly incorporated herein by reference; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents Company Information provided to the Investor by the Company in contemplation of this offering and the representations and warranties of the Company contained herein. The Investor has carefully considered the potential risks relating to the Company and a purchase of the Shares, and fully understands that the Shares are speculative investments which involve a high degree of risk of loss of the Investor's entire investment. The Investor understands that (a) its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold (b) that the Shares therefore cannot be resold unless they are registered under the Act or when an exemption from registration is available, and (c) that the certificates for any period of timethe Shares will bear a legend stating that they have not been registered under federal or state securities law and cannot be resold unless they are registered or an exemption from registration is available.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense. The Investor acknowledges, represents and agrees that the Placement Agent is not authorized to make any representation or use any information in connection with the issue, placement, purchase and sale of the Shares.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement Agreement, including Section 7.2 hereof, and without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and legally binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither 5.5 The Investor will not, prior to the effectiveness of the Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a "Disposition"), the Common Stock of the Company, nor will Investor nor any person acting on its behalf or at its direction has engaged engage in any purchase hedging or sale other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock (including of the Company by the Investor or any other person or entity. Such prohibited hedging or other transactions would include, without limitation limitation, effecting any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement sale or otherwise has engaged or will engage, directly or indirectly, having in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover effect any short position in (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to the Common Stock of the Company if doing so would be or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in violation of applicable securities laws and otherwise will comply this Agreement or any other materials presented to the Investor in connection with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor has reviewed the Company’s public filings with the SEC; (ii) the Investor has had an opportunity to ask the Company’s representatives questions regarding the offering and receive answers from the Company; (iii) the Investor has been afforded an opportunity to request from the Company, and to review, all additional information the Investor considered to be necessary to make an informed investment decision with respect to the Shares; (iv) the Investor is an "institutional “accredited investor" ” (as defined in Rule 501(a) (1), (2), (3), or (7) of Regulation D under the Securities Act Act), a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) and the Investor is also knowledgeable, sophisticated and experienced in making, making and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (iiv) by reason of the Investor’s business or financial experience, the Investor is capable of evaluating the merits and risks of an investment in the Shares and of protecting the Investor’s own interests in connection with the transaction; (vi) the Investor has adequate means to provide for the Investor’s financial needs with no expectation of a return on the Investor’s investment, including a complete loss of the investment; (vii) the Investor understands that the Shares have not been registered under the Securities Act and may not be resold unless they are so registered or unless an exemption from registration is available; (viii) the Investor is acquiring the number of SharesShares for the Investor’s own account, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and not with no present intention a view toward their distribution within the meaning of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities Act; (iiiix) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act Act, or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. 5.2 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement, including Section 7.2 hereof, and without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus (as defined in Section 7.1) forming a part of the Registration Statement (as defined in Section 7.1) until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4 The Investor will not, prior to the effectiveness of the Registration Statement, except pursuant to a valid exemption from registration and in compliance with Section 7.2(a)(i) of this Agreement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a “Disposition”), the Shares, nor any person acting on its behalf or at its direction has engaged will the Investor engage in any purchase hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Shares by the Investor or any other person or entity. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of Common Stock when such position was entered into) or any purchase, sale or grant of any right (including without limitation any short sale)put or call option) with respect to the Shares or with respect to any security (other than a broad-based market basket or index) that includes, pledge, transfer, establishment relates to or derives any significant part of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in its value from the Common Stock of the Company if doing so would be Company.
5.5 The Investor understands that nothing in violation of applicable securities laws and otherwise will comply this Agreement or any other materials presented to the Investor in connection with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares.
5.7. 5.6 The Company Investor acknowledges and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of Shares in any jurisdiction outside the United States where action for that purpose is required. The Investor does not make will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has not made in its possession or distributes any representations offering material, in all cases at its own expense.
5.7 The Investor acknowledges that it understands its obligation to comply with the provisions of the Exchange Act and the rules thereunder relating to stock manipulation, particularly Regulation M thereunder (or warranties any successor rules or regulations), in connection with respect any offering of Shares pursuant to the transactions contemplated hereby other than those specifically set forth Registration Statement. The Investor agrees that neither it nor any person acting on its behalf will engage in Sections 5, 6 and 16(a) any transaction in violation of this Agreement, or in the Confidentiality Agreement (as defined below)such provisions.
Appears in 1 contract
Samples: Stock Purchase Agreement (Tivo Inc)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: that (ia) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesSecurities; (iib) the Investor is acquiring the number of Shares, each as Preferred Shares and Warrants set forth in Section 3 Article V of the Stock attached Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (iiic) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (d) the Investor has answered all questions on the Investor Questionnaire and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (e) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Conversion Shares and Warrant Shares; and (ivf) the Investor has, in connection with its decision to purchase the number of Preferred Shares as and Warrants set forth in Section 3 Article V of the Stock attached Securities Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its neither the Offering nor the acquisition of the Shares has not Securities have been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws herein and the respective rules information provided in the Investor’s Investor Questionnaire. Investor has completed or caused to be completed and regulations promulgated thereunderdelivered to the Company the Investor Questionnaire, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timewhich questionnaire is true, correct and complete in all material respects.
5.2. 5.2 The Investor acknowledges(other than individuals) is an entity duly organized, represents validly existing and agrees that no action has been or will be taken in any jurisdiction outside good standing under the United States by the Company that would permit an offering laws of the Shares, or possession or distribution jurisdiction of offering materials in connection its organization with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws full power and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby by this Agreement and has taken all necessary action otherwise to authorize the carry out its obligations hereunder. The execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement to be performed by the Investor have been duly authorized by all necessary corporate or similar action on the part of the Investor. This Agreement has been duly executed by the Investor, and (ii) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor it in accordance with its terms, except (i) as enforceability may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except generally, (ii) as limited by rules of law governing specific performance, injunctive relief, or other equitable remedies, (iii) as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as (iv) to the extent the indemnification agreements and contribution provisions contained in this Annex I to the Securities Purchase Agreement may be limited by applicable federal or state securities laws or the public policy underlying such laws.
5.3 The Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is (i) acquiring the Securities and (ii) the shares of Common Stock receivable upon conversion or exercise thereof, in each case, for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in violation of the Securities Act; provided, however, that by making the representations herein, the Investor does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities under an exemption under the Securities Act and reserves the right to dispose of the Conversion Shares and Warrant Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. The Investor is acquiring the Securities hereunder in the ordinary course of its business.
5.5 The Investor understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein may be legally unenforceablein order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. 5.6 The Investor will not use any of and its advisors, if any, have been furnished with all publicly available materials relating to the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock business, finances and operations of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in such other publicly available materials relating to the holding offer and sale of the Shares.
5.6Securities as have been requested by the Investor. The Investor has consulted and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such legalinquiries nor any other due diligence investigations conducted by the Investor or its advisors, tax if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained herein. The Investor understands that its investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase the Securities involves a high degree of Sharesrisk.
5.7. 5.7 The Company acknowledges and agrees Investor understands that Investor does not make no United States federal or state agency or any other government or governmental agency has not passed on or made any representations recommendation or warranties with respect to endorsement of the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) Securities or the fairness or suitability of this Agreement, or the investment in the Confidentiality Agreement (as defined below)Securities, nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor represents and warrants to, and covenants agrees with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package, the documents incorporated by reference therein and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timeOffering Information.
5.2. The 4.2 If the Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction is outside the United States by the Company that would permit an offering of the SharesStates, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. (a) The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such Shares constitutes legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).investment
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesShares and the Warrant, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesShares and the Warrant; (ii) the Investor is acquiring the number of Shares and a Warrant to purchase the number of Warrant Shares, each as set forth in Section 3 of the Stock and Warrant Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Warrants or Warrant Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares, Warrant or Warrant Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares, Warrant or Warrant Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire and the Registration Statement Questionnaire for use in preparation of each Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares and Warrant Shares or until the Company is no longer required to keep any Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares and the Warrant to purchase the number of Warrant Shares, each as set forth in Section 3 of the Stock and Warrant Purchase Agreement, relied only upon the Exchange Act Disclosure Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares and the Warrant has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares, Warrant or Warrant Shares for any period of time. The Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, Warrant or Warrant Shares or possession or distribution of offering materials in connection with the issue of the Shares, Warrant or Warrant Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares, the Warrant or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor investor hereby covenants with the Company not to make any sale of the Shares, Warrant or Warrant Shares without complying with the provisions of this Agreement and without causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement), if applicable, and the Investor acknowledges that the certificates evidencing the Shares and Warrant Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of a Registration Statement, as set forth in Section 7.2(b).
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (ii) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and ; (iiiii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
; and (iv) the execution, delivery and performance by the Investor of this Agreement and the consummation by the Investor of the transactions contemplated hereby will not, to the extent applicable: (a) result in a violation of the organizational documents of such Investor, (b) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which such Investor is a party, or (c) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to such Investor, except in the case of clauses (b) and (c) above, for such that are not material and do not otherwise materially adversely affect the ability of such Investor to consummate the transactions contemplated hereby. 5.5. Neither Between the time the Investor nor any person acting on its behalf or at its direction learned about the Offering and the public announcement of the Offering, the Investor has not engaged in any purchase short sales or sale of similar transactions with respect to the Common Stock (including without limitation any short sale)Stock, pledge, transfer, establishment of an open "put equivalent position" within nor has the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engageInvestor, directly or indirectly, caused any person to engage in any action designed to, short sales or which might be reasonably expected to, cause or result in any manipulation of the price of similar transactions with respect to the Common Stock. The Without limiting the foregoing, Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws laws.
5.6. The Investor understands that nothing in the holding Disclosure Documents, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Shares and the Warrant constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesShares and the Warrant.
5.7. The Company acknowledges Investor is not purchasing the Shares and agrees Warrants as a result of any advertisement, article, notice or other communication regarding the Shares and Warrants published in any newspaper, magazine or similar media, broadcast over television or radio, disseminated over the Internet or presented at any seminar or, to its knowledge, any other general solicitation or general advertisement.
5.8. The Investor understands that Investor does not make no U.S. federal or state agency or any other government or governmental agency has not passed on or made any representations recommendation or warranties with respect to endorsement of the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) Shares or Warrants or the fairness or suitability of this Agreement, or the investment in the Confidentiality Agreement (as defined below)Shares and Warrants nor have such authorities passed upon or endorsed the merits of the offering of the Shares and Warrants.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Inhibitex, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement (as defined in Section 7.1(c) hereof) and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire(s) attached hereto, applicable securities laws which questionnaire is true and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timecorrect in all material respects.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.2 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and Agreement, including the Registration Rights Agreement provisions of Section 7.2 hereof, and without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus (as defined in Section 7.1(c) hereof) forming a part of the Registration Statement, as set forth in Section 7.2(c).
5.4. 5.3 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate perform the transactions to be performed by the Investor contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) assuming the accuracy of the Company’s representations in Section 4.3, this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.4 Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Company Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply laws.
5.5 The Investor understands that nothing in this Agreement or any other materials presented to the Investor in connection with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) all of the representations made by the Investor are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject There are no suits, pending litigation, or claims against the undersigned that could materially affect the net worth of the Investor.
5.2 The Investor acknowledges that it has been provided with a copy of the Exchange Act Documents and has carefully reviewed the same. The Investor further acknowledges that the Company has made available to compliance with it the opportunity to ask questions of and receive answers from the Company’s officers and directors concerning the terms and conditions of this Agreement and the business and financial condition of the Company, and the Investor has received to its satisfaction, such information about the business and financial condition of the Company and the terms and conditions of the Agreement as it has requested. The Investor has carefully considered the potential risks relating to the Company and a purchase of the Securities, and fully understands that the Securities Actare speculative investments, applicable securities laws and which involve a high degree of risk of loss of the respective rules and regulations promulgated thereunderInvestor’s entire investment. Among others, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period undersigned has carefully considered each of timethe risks identified under the caption “Risk Factors” in the Exchange Act Documents.
5.2. 5.3 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.4 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and without causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 6.2(c). The undersigned is aware that, in such event, the Securities will not be subject to ready liquidation, and that any Securities purchased by the undersigned would have to be held during such suspension. The overall commitment of the Investor to investments, which are not readily marketable, is not excessive in view of the Investor’s net worth and financial circumstances, and any purchase of the Securities will not cause such commitment to become excessive. The Investor is able to bear the economic risk of an investment in the Securities.
5.4. 5.5 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.6 Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shareslaws.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, or any Shares and no arrangement or understanding exists with any other persons person regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the signature page hereto for use in preparation of the Registration Statement (as defined in Section 7.1) and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents Placement Memorandum and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject Investor has completed or caused to compliance with the Securities Act, applicable securities laws be completed and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor delivered to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesInvestor Questionnaire attached as Exhibit E to the Placement Memorandum, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose which questionnaire is required. Each Investor outside the United States will comply with all applicable laws true and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, correct in all cases at its own expensematerial respects.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Rule 501 of Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor has carefully read and fully understands the risks involved with an investment in the Company including, without limitation, the risks identified on Annex II, attached hereto, (iii) the Investor is acquiring the number of Shares, each as shares set forth in Section 3 of the Stock Signature Page to the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iiiiv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (v) all of the representations made by the Investor are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as shares set forth in Section 3 of the Stock Signature Page to the Securities Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands There are no suits, pending litigation, or claims against the undersigned that its acquisition of could materially affect the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature net worth of the Investor's investment intent as expressed herein.
5.2 The Investor acknowledges that it has had access to the Exchange Act Documents and has carefully reviewed the same. Subject The Investor further acknowledges that the Company has made available to compliance with it the Securities Act, applicable securities laws opportunity to ask questions of and receive answers from the Company’s officers and directors concerning the terms and conditions of this Agreement and the respective rules business and regulations promulgated thereunderfinancial condition of the Company, nothing contained herein shall be deemed and the Investor has received to its satisfaction, such information about the business and financial condition of the Company and the terms and conditions of the Agreement as it has requested. The Investor has carefully considered the potential risks relating to the Company and a representation or warranty by such Investor to hold purchase of the shares, and fully understands that the Shares for any period are speculative investments, which involve a high degree of timerisk of loss of the Investor’s entire investment. Among others, the undersigned has carefully considered each of the risks identified under the caption “Risk Factors” in the Exchange Act Documents and Annex II.
5.2. 5.3 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Sharesshares, or possession or distribution of offering materials in connection with the issue issuance of the Sharesshares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares shares, or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.4 The Investor hereby covenants with the Company not to make any sale of the Shares shares, without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to itAgreement, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The overall commitment of the Investor to investments, which are not readily marketable, is not excessive in view of the Investor’s net worth and financial circumstances, and any purchase of the shares will not cause such commitment to become excessive. The Investor is able to bear the economic risk of an investment in the shares.
5.4. 5.5 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable).
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.6 Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws laws.
5.7 The Investor understands that nothing in the holding Exchange Act Documents, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesthe shares.
5.75.8 The Investor understands that the issuance of the shares to the Investor has not been registered under the Securities Act in reliance upon one or more specific exemptions therefrom, including Regulation D and/or Regulation S, which exemption depends upon, among other things, the accuracy of the Investor’s representations made in this Agreement. The Investor understands that the shares must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, or unless an exemption from such registration and qualification requirements is otherwise available. The Investor acknowledges that the Company has no obligation to register or qualify the shares or underlying Shares for resale. The Investor acknowledges and agrees that Investor does not make or has the Company will refuse to register any transfer of Shares that is not made any representations or warranties in accordance with respect the provisions of Regulation S, registered pursuant to the transactions contemplated hereby Securities Act or otherwise exempt from such registration. The Investor further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Shares and requirements relating to the Company which are outside of the Investor’s control, and which the Company is under no obligation and may not be able to satisfy. The Investor has been independently advised as to the applicable holding period imposed in respect of the Shares by securities legislation in the jurisdiction in which the undersigned resides and confirms that no representation has been made respecting the applicable holding periods for the Shares in such jurisdiction and it is aware of the risks and other than those specifically set forth characteristics of the shares and of the fact that the undersigned may not resell the Shares except in Sections 5accordance with applicable securities legislation and regulatory policy.
5.9 A copy of the Company’s annual report on Form 10-K, 6 its quarterly reports on Form 10-Q, current reports on Form 8-K and 16(ainformation statements are available on the SEC’s website at xxx.xxx.xxx.
5.10 For purposes of compliance with the Regulation S exemption for the offer and sale of the Shares (defined in this Section 5.10 to include the underlying Shares) to non-U.S. Persons, if the Investor is not a “U.S. Person,” as such term is defined in Rule 902(k) of this AgreementXxxxxxxxxx X,0 the Investor represents and warrants that the Investor is a person or entity that is outside the United States, or in the Confidentiality Agreement (and further represents and warrants as defined below).follows:
Appears in 1 contract
Samples: Securities Purchase Agreement (Petrosonic Energy, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) either (A) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares or (B) the Company has made available to the Investor, prior to the date hereof, the opportunity to ask questions of and receive complete and correct answers from representatives of the Company concerning the terms and conditions of the Shares and to obtain any additional information relating to the financial condition and business of the Company and the Investor, either alone or with Wellington Management Company, LLP as its purchaser representative, has such knowledge and experience in financial and business matters that the Investor is capable of evaluating the merits and risks of the investment in the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and without causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement), and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.5 Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.65.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. 5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 5 and 16(a) of this Agreement, or in the Confidentiality Investor Questionnaire.
5.8 The Investor hereby acknowledges that the Shares purchased pursuant to this Agreement (as defined below)are being purchased in full satisfaction of the Investor's pre-emptive rights pursuant to Section 8 of the Subscription Agreement between the Investor and the Company dated March 26, 2003, in respect of the Shares sold by the Company pursuant to the Agreements and hereby waives its notice right pursuant to such provision in respect of the Shares sold by the Company pursuant to the Agreements.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges and represents and warrants to, and covenants agrees with, the Company that: :
(ia) The Investor acknowledges its understanding and agreement that the Investor is an "accredited investor" Shares are characterized as defined in Regulation D “restricted securities” under the Securities Act and U.S. federal securities laws inasmuch as they are being offered in a transaction not involving any public offering within the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in Unites States within the purchase meaning of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has have not been registered under the Securities Act or registered or qualified the securities laws of any jurisdiction and, unless so registered, may not be sold except as exempt from registration under any state securities law the Securities Act.
(b) The Investor acknowledges its understanding that the offering and sale of the Shares is intended to be exempt from registration under the Securities Act and that the Company is relying on the Investor’s representations and warranties in reliance on specific exemptions therefromconnection with such exemption.
(c) At the time the Investor was offered the Shares, the Investor was and, as of the date hereof, the Investor is an “accredited investor” as defined in Rule 501(a) under the Securities Act (and has executed and delivered to the Company its Investor Questionnaire, which exemptions may depend uponthe Investor represents and warrants is true, among other thingscorrect and complete) and has a substantive, pre-existing relationship with the bona fide nature Company and the management of the Company.
(d) The Investor is acquiring the Shares solely for the Investor's ’s own beneficial account (and not for the account of others), for investment intent as expressed herein. Subject to compliance purposes, and not with a view towards, or resale in connection with, any distribution of the Shares in violation of the Securities Act, applicable securities laws and the respective rules Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the Securities Act without prejudice, however, to the Investor’s right at all times to sell or otherwise dispose of all or any part of such Shares in compliance with applicable federal and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such state securities laws.
(e) The Investor to hold acknowledges that it can bear the economic risk and complete loss of its investment in the Shares for any period and has such knowledge and experience in financial or business matters that it is capable of timeevaluating the merits and risks of the investment contemplated hereby.
5.2. (f) The Investor acknowledges, represents understands and agrees that no action has been certificates or will be taken in any jurisdiction outside book-entry notations for the United States by Shares shall bear or reflect, as applicable, a legend substantially similar to the Company that would permit an offering following: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND, ACCORDINGLY, MAY NOT BE TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144, OR (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES ARE SUBJECT TO TRANSFER AND OTHER RESTRICTIONS SET FORTH IN A SECURITIES PURCHASE AGREEMENT, DATED AUGUST 19, 2021, COPIES OF WHICH ARE ON FILE WITH THE COMPANY.”
(g) The Investor did not learn of the Shares, investment in the Shares as a result of any general solicitation or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expensegeneral advertising.
5.3. The Investor hereby covenants with the Company not (h) Except for any fees or expenses that may be payable to make any sale SVB Leerink LLC and/or Xxxxxxx Xxxxx & Associates, Inc., no Person (as defined below) will have, as a result of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action by this Agreement, any valid right, interest or claim against or upon the Company or the Investor for any commission, fee or other compensation pursuant to authorize any agreement, arrangement or understanding entered into by or on behalf of the execution, delivery and performance Investor. For the purposes of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation “Person” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceableentity not specifically listed herein.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Samples: Securities Purchase Agreement (Rafael Holdings, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: :
(i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares presenting securities representing an investment decision like that involved in the purchase of the SharesConvertible Promissory Note, including investments in securities issued by the Company and investments in comparable companiesCompany, and has requested, received, reviewed and considered understood all information it deemed deems relevant in making an informed decision to purchase the Shares; Convertible Promissory Note;
(ii) it acknowledges that the offering of the Convertible Promissory Note pursuant to this Agreement has not been reviewed by the Securities Exchange Commission ("Commission") or any state or other regulatory authority;
(iii) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and Convertible Promissory Note for its own account and not on behalf of or for investment only the benefit of any U.S. person and the sale and resale of the Convertible Promissory Note have not been prearranged with any buyer in the United States, and the Investor has no present intention of distributing making any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; thereof;
(iiiiv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Convertible Promissory Note or the Common Shares underlying such Convertible Promissory Note except in compliance with the Securities Act, the Securities Act Rules and Regulations and any applicable state securities laws and the respective rules and regulations promulgated thereunder; and or blue sky laws;
(ivv) the Investor has, has had an opportunity to discuss this investment with representatives of the Company and ask questions of them and such questions have been answered to the full satisfaction of the Investor;
(vi) the Investor is not a "U.S. person" within the meaning of Rule 902(o) of Regulation S promulgated under the Securities Act and qualifies as an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated under the Securities Act;
(vii) the Convertible Promissory Note was not offered to Investor in connection with its decision the United States and at the time of execution of this Investment Agreement and of any offer to the Investor to purchase the number of Shares as set forth in Section 3 Convertible Promissory Note hereunder, the Investor was physically outside the United States;
(viii) the Investor hereby agrees that all offers and sales of the Stock Purchase Agreement, relied upon the Exchange Act Documents Convertible Promissory Note and the representations underlying Common Shares prior to the expiration of a period commencing on the Closing and warranties ending six months thereafter (the "Distribution Compliance Period") shall not be made to U.S. persons or for the account or benefit of U.S. persons and shall otherwise be made in compliance with the provisions of Regulation S; and
(ix) neither Investor nor any person acting directly or indirectly on its behalf has the intention of entering, or will enter during the Distribution Compliance Period into any put option, short position or any hedging transaction or other similar instrument or position with respect to the Common Shares.
5.2 The Investor acknowledges that
(i) the Convertible Promissory Note and the underlying Common Shares have not been and are not being registered under the provisions of the Securities Act, and may not be transferred unless the Investor shall have delivered to the Company contained herein. The Investor understands an opinion of counsel, reasonably satisfactory in form, scope and substance to the Company, to the effect that its acquisition the Convertible Promissory Note and the underlying Common Shares to be sold or transferred may be sold or transferred pursuant to Rule 144 or other exemption promulgated under the Securities Act;
(ii) any sale of the Shares has made in reliance on Rule 144 promulgated under the Securities Act may be made only in accordance with the terms of said Rule and further, if said Rule is not been registered applicable, any resale of such Convertible Promissory Note or underlying Common Shares under circumstances in which the seller, or the person through whom the sale is made, may be deemed to be an underwriter, as that term is used in the Securities Act, may require compliance with some other exemption under the Securities Act or registered or qualified the Securities Act Rules and Regulations of the Commission thereunder; and
(iii) neither the Company nor any other person is under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, obligation to register the bona fide nature of Convertible Promissory Note or the Investor's investment intent as expressed herein. Subject to compliance with underlying Common Shares under the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. 5.3 The Investor further represents and warrants to, and covenants with, the Company that that
(i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and ;
(ii) the Investor is duly organized, validly existing and in good standing under the laws of the its jurisdiction of organization; and
(iii) upon the execution and delivery of this Agreement, this Agreement constitutes shall constitute a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) ).
5.4 The Investor recognizes that an investment in the Convertible Promissory Note and except as the indemnification agreements underlying Common Shares is speculative and involves a high degree of risk, including a risk of total loss of the Investor's investment. The Investor herein may be legally unenforceablecan bear the economic risk of this investment and can afford a complete loss thereof.
5.55.5 All of the information provided to the Company or its agents or representatives concerning the Investor's suitability to invest in the Company and the representations and warranties contained herein, are complete, true and correct as of the date hereof. Neither The Investor understands that the Company is relying on the statements contained herein to establish an exemption from registration under U.S. federal and state securities laws.
5.6 The Investor understands and agrees that each certificate or other document evidencing the Convertible Promissory Note and any of the underlying Common Shares shall be endorsed with the legend in substantially the form set forth below, as well as any other legends required by applicable law, and the Investor nor covenants that the Investor shall not transfer the securities represented by any such certificate without complying with the restrictions on transfer described in the legends endorsed on such certificates: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO REGULATION S, PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (A) THE PROVISIONS OF REGULATION S, (B) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (C) SUCH OTHER EXEMPTIONS FROM SUCH REGISTRATION. HEDGING TRANSACTIONS WITH RESPECT TO SUCH SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT. AS A CONDITION TO PERMITTING ANY TRANSFER OF THESE SECURITIES, THE COMPANY MAY REQUIRE THAT IT BE FURNISHED WITH AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO REGISTRATION OR QUALIFICATIONS IS LEGALLY REQUIRED FOR SUCH TRANSFER.
5.7 The Investor has taken no action which would give rise to any claim by any person acting on its behalf for brokerage commission, finder's fees or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of similar payments by Investor relating to this Agreement or otherwise has engaged the transactions contemplated hereby. The Company shall have no obligation with respect to such fees or will engage, directly with respect to any claims made by or indirectly, on behalf of other persons for fees of a type contemplated in any action designed to, or which might this Section that may be reasonably expected to, cause or result due in any manipulation of connection with the price of the Common Stocktransactions contemplated hereby. The Investor will not use shall indemnify and hold harmless the Company, its employees, officers, directors, agents, and partners, and their respective affiliates, from and against all claims, losses, damages, costs (including the costs of preparation and attorney's fees) and expenses suffered in respect of any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws such claimed or existing fees, as and otherwise will comply with federal securities laws in the holding and sale of the Shareswhen incurred.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Samples: Convertible Promissory Note Agreement (Semotus Solutions Inc)
Representations, Warranties and Covenants of the Investor. 5.1. a) The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares securities presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor has been given the opportunity to ask questions of, and receive answers from, a qualified representative of the Company concerning the terms and conditions of this offering, the business and financial condition of the Company and other matters pertaining to this investment, and has been given the opportunity to obtain such other information necessary to evaluate the merits and risks of an investment in the Shares as the Investor deems necessary, and the Investor has received, reviewed and considered the "RISK FACTORS" attached as Exhibit B hereto; (iii) the Investor is acquiring not relying on the number of Company with respect to any economic considerations involved in the investment in the Shares, each and no representations or warranties, other than as set forth in Section 3 4 herein, have been made to the Investor by the Company or any officer, employee, agent or affiliate of the Stock Purchase Agreement in Company; (iv) the ordinary course of its business and Investor is acquiring the Shares for investment for its own account for investment only account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and the Investor has no present intention of distributing selling, granting any of such Sharesparticipation in, or any arrangement or understanding with any other persons regarding otherwise distributing the distribution of such Sharessame; and (iiiv) the Investor will not, directly or indirectly, offersell, offer to sell, loan, grant any right to, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of)(collectively, a "disposition") any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv.
b) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has are "restricted securities" under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not been registered involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act or registered or qualified under any state securities law only in reliance on specific exemptions therefrom, which exemptions may depend upon, among other thingscertain limited circumstances. In this regard, the bona fide nature of Investor represents that it is familiar with SEC Rule 144 ("Rule 144"), as presently in effect, and understands the Investor's investment intent as expressed herein. Subject to compliance with resale limitations imposed thereby and by the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such . The Investor is prepared to hold the Shares for any an indefinite period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken c) Without in any jurisdiction outside way limiting the United States by representations set forth above, the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company further agrees not to make any sale disposition of all or any portion of the Shares without complying unless (i) there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement, or (ii) the Investor shall have notified the Company of the proposed disposition and shall have furnished the Company with a statement of the circumstances surrounding the proposed disposition, and, if reasonably requested by the Company, the Investor shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration of such Shares under the Securities Act. The Investor shall comply with the provisions requirements of this Agreement and the Registration Rights Agreement and without complying Section 7 in connection with any prospectus delivery requirement then applicable to itproposed disposition. In addition, and the Investor acknowledges shall not engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a disposition of the Shares by the Investor or any other person or entity. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to the Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Common Stock of the Company, but such security shall not include the capital stock or debt of the Investor, its parent companies or their respective subsidiaries.
d) The certificates evidencing the Shares will bear the following legends:
(i) THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 PROMULGATED UNDER SUCH ACT."
(ii) Any legend required by the laws of the State of Delaware or Connecticut. The legend referred to in clause (a) above shall be imprinted removed by the Company from any certificate at such time as the holder of the Shares represented by the certificate delivers an opinion of counsel reasonably satisfactory to the Company to the effect that such legend is not required in order to establish compliance with any provisions of the Securities Act, or at such time as the holder of such Shares satisfies the requirements of Rule 144(k) under the Securities Act; provided, that Rule 144(k) as then in effect does not differ substantially from Rule 144(k) as in effect as of the date of this Agreement; and provided further, that the Company has received from the holder a legend written representation that prohibits their transfer except such holder is not an affiliate of the Company and has not been an affiliate during the preceding three (3) months, such holder has beneficially owned the Shares represented by the certificate for a period of at least two (2) years, and such holder otherwise satisfies the requirements of Rule 144(k) as then in accordance therewitheffect with respect to such Shares.
5.4. e) The Investor further represents and warrants to, and covenants with, to the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and the Amendment to Joint Development Agreement and to consummate the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Amendment to Joint Development Agreement, and (ii) upon the execution and delivery of this Agreement constitutes and the Amendment to Joint Development Agreement, each of this Agreement and the Amendment to Joint Development Agreement shall constitute a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable).
5.5. Neither the f) The Investor nor any person acting on its behalf or at its direction has engaged understands that nothing in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, any other materials presented to the Investor in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of connection with the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Samples: Stock Purchase Agreement (Alexion Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor represents and warrants to, and covenants with, the Company that: (ia) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesSecurities; (iib) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement Securities in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (iiic) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (d) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (e) if necessary under applicable law, the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Securities or until the Company is no longer required to keep the Registration Statement effective; and (ivf) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase AgreementSecurities, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares Securities has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire, applicable securities laws which questionnaire is true, correct and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timecomplete in all material respects.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the SharesSecurities, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares Securities without complying with the provisions of this Agreement and without causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Common Shares, the Warrant, and the Warrant Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).
5.4. The Investor further represents and warrants to, and covenants with, the Company that (ia) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither The Investor has not, during the 15 days prior to the date of this Agreement, directly or indirectly, traded in the Common Stock or established any hedge or other position in the Common Stock that is outstanding on the Closing Date and that is designed to or could reasonably be expected to lead to or result in a direct or indirect sale, offer to sell, solicitation of offers to buy, disposition of, loan, pledge or grant of any right with respect to (collectively, a "Disposition") by the Investor nor or any other person acting on its behalf or at its direction has engaged entity. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any purchase short position (whether or not such sale or position is against the box and regardless of Common Stock when such position was entered into) or any purchase, sale or grant of any right (including without limitation any short sale)put or call option) with respect to the Common Stock or with respect to any security (other than a broad-based market basket or index) that includes, pledge, transfer, establishment relates to or derives any significant part of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of its value from the Common Stock. The Investor will acknowledges that the Securities shall bear a restrictive legend to the effect that the Securities have not use any been registered under the Securities Act and such Securities may not be sold or transferred in the absence of the restricted Shares acquired an effective registration statement or pursuant to an available exemption from registration.
5.6. The Investor understands that nothing in the Exchange Act Documents, this Agreement or any other materials presented to cover any short position the Investor in connection with the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesSecurities.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Samples: Securities Purchase Agreement (Odyssey Marine Exploration Inc)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor represents and warrants to, and covenants agrees with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agents that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package, the documents incorporated by reference therein and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timeOffering Information.
5.2. The 4.2 If the Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction is outside the United States by the Company that would permit an offering of the SharesStates, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. (a) The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges 4.5 Since the earlier to occur of (i) the date on which any Placement Agent first contacted such Investor about the Offering and agrees (ii) the date that Investor does not make or has not made any representations or warranties with respect is the tenth (10th) trading day prior to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) date of this Agreement, or it has not engaged in any transactions in the Confidentiality securities of the Company (including, without limitation, any Short Sales involving the Company’s securities). Each Investor covenants that it will not engage in any transactions in the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. Each Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined belowin Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Rule 501 of Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesUnits, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesUnits; (ii) ) the Investor has carefully read and fully understands the risks involved with an investment in the Company including, without limitation, the risks identified on Annex II, attached hereto, (iii) the Investor is acquiring the number of Shares, each as Units set forth in Section 3 of the Stock Signature Page to the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Units or any arrangement or understanding with any other persons regarding the distribution of such SharesUnits; (iiiiv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Units except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (v) all of the representations made by the Investor are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (vi) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or Warrant Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvii) the Investor has, in connection with its decision to purchase the number of Shares as Units set forth in Section 3 of the Stock Signature Page to the Securities Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Units, Shares and Warrant Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject There are no suits, pending litigation, or claims against the undersigned that could materially affect the net worth of the Investor.
5.2 The Investor acknowledges that it has had access to compliance with the Securities Act, applicable securities laws Exchange Act Documents and has carefully reviewed the same. The Investor further acknowledges that the Company has made available to it the opportunity to ask questions of and receive answers from the Company's officers and directors concerning the terms and conditions of this Agreement and the respective rules business and regulations promulgated thereunderfinancial condition of the Company, nothing contained herein shall be deemed and the Investor has received to its satisfaction, such information about the business and financial condition of the Company and the terms and conditions of the Agreement as it has requested. The Investor has carefully considered the potential risks relating to the Company and a representation or warranty by such Investor to hold purchase of the Shares for any period Units, and fully understands that the Units are speculative investments, which involve a high degree of timerisk of loss of the Investor’s entire investment. Among others, the undersigned has carefully considered each of the risks identified under the caption “Risk Factors” in the Exchange Act Documents and Annex II.
5.2. 5.3 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesUnits, or possession or distribution of offering materials in connection with the issue issuance of the SharesUnits, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Units, Shares, Warrants or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.4 The Investor hereby covenants with the Company not to make any sale of the Units, Shares, Warrants or Warrant Shares without complying with the provisions of this Agreement and without causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 6.2(c). The undersigned is aware that, in such event, the Shares and Warrant Shares will not be subject to ready liquidation, and that any Shares and Warrant Shares purchased by the undersigned would have to be held during such suspension. The overall commitment of the Investor to investments, which are not readily marketable, is not excessive in view of the Investor’s net worth and financial circumstances, and any purchase of the Units will not cause such commitment to become excessive. The Investor is able to bear the economic risk of an investment in the Units.
5.4. 5.5 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.6 Investor will not use any of the restricted Shares or Warrant Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shareslaws.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Samples: Securities Purchase Agreement (American Petro-Hunter Inc)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor represents and warrants toto the Company, and covenants withfor the benefit of the Company, the Company that: as follows:
(ia) the The Investor is an "accredited investor" as defined in under Rule 501 of Regulation D promulgated under the Securities Act and of 1933, as amended (the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; "Securities Act");
(iib) the The Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and Shares for its own account for and not with a view to any distribution of the Shares in violation of the Securities Act;
(c) The Investor acknowledges that it has significant prior investment only experience, including investment in non-listed and with no present intention non-registered securities, and that the Investor recognizes the highly speculative nature of distributing any this investment. In particular, and without limitation, the Investor represents that it understands that the Company’s securities have suffered significant illiquidity and decline in stock price and that other restricted shareholders are eligible to sell securities pursuant to Rule 144 of such Sharesthe Securities Act. The Investor represents that it has been furnished with, or any arrangement or understanding with any and has reviewed, all of the Company’s securities filings and all documents and other persons information regarding the distribution of such Shares; (iii) Company that the Investor had requested or desired to know and all other documents which could be reasonably provided have been made available for the Investor’s inspection and review;
(d) The Investor acknowledges that the Shares have not been passed upon or reviewed by the Securities and Exchange Commission. The Investor agrees that it will not, directly or indirectly, offer, not sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance with until they are registered under the Securities Act, applicable state securities laws or unless an exemption from such registration is available and that a legend substantially in the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares form as set forth provided in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or 4 below will be taken in any jurisdiction outside placed on the United States by certificate(s) representing the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.shares to such effect;
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (ie) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this This Agreement constitutes a valid and binding agreement and obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to limitations on enforcement by general principles of equity and bankruptcy or other laws affecting the enforcement of creditors' rights generally;
(regardless f) Investor is not acquiring the Shares as part of whether a group, as such enforceability term is considered defined in a proceeding in equity or at law) and except as the indemnification agreements Section 13 of the Investor herein may be legally unenforceable.
5.5. Neither Securities and Exchange Act of 1934, as amended (the Investor nor “Exchange Act”), and is not acting in concert with any person acting on in such manner. Investor makes its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws own voting and otherwise will comply with federal securities laws in the holding dispositive decisions and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made agreed to grant any representations proxy or warranties enter into any form of voting trust, agreement or similar arrangement with respect to the transactions Shares; and
(g) This Agreement has been duly authorized, validly executed and delivered on behalf of the Investor, and the Investor has full power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform his obligations hereunder and thereunder.
(h) Investor understands and acknowledges existing holders of Notes (the “Notes”) and Warrants (the “Warrants”) issued in January of 2008 to certain investors and the placement agent (the “Note Holders”) have certain full ratchet and other than those specifically set forth anti dilutions protections attached to their Notes and Warrants, and that the Company shall have obtained partial waivers from the Note Holders which provide, in Sections 5relevant part, 6 and 16(a) of this Agreement, or in that the Confidentiality Agreement Conversion Price (as defined below)in the Notes) of such Notes shall be reduced to (i) $0.20 if such Note Holder invests new monies in the Company pursuant to an offering of convertible notes with similar terms to their existing Notes (except at a lower conversion price) or (ii) $0.25 per share if such note Holder does not invest new monies, and further provide that such Note Holders waive any other anti dilution rights that would otherwise cause an adjustment to the exercise price of the Warrants or any other anti dilution rights that would cause an adjustment or adjustments to the nature of the Warrants or Notes as a result of this offering.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (China Broadband Inc)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesSecurities; (ii) the Investor is acquiring the number of Common Shares, each as Preferred Shares and Warrants set forth in Section 3 Article III of the Stock attached Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Common Shares, Conversion Shares and Warrant Shares or until the Company is otherwise no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Common Shares, Preferred Shares as and Warrants set forth in Section 3 Article III of the Stock attached Securities Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its neither the Offering nor the acquisition of the Shares has not Securities have been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws herein and the respective rules information provided in the Investor’s Investor Questionnaire. Investor has completed or caused to be completed and regulations promulgated thereunderdelivered to the Company the Investor Questionnaire, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timewhich questionnaire is true, correct and complete in all material respects.
5.2. 5.2 The Investor acknowledges(other than individuals) is an entity duly organized, represents validly existing and agrees that no action has been or will be taken in any jurisdiction outside good standing under the United States by the Company that would permit an offering laws of the Shares, or possession or distribution jurisdiction of offering materials in connection its organization with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws full power and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby by this Agreement and has taken all necessary action otherwise to authorize the carry out its obligations hereunder. The execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement to be performed by the Investor have been duly authorized by all necessary corporate or similar action on the part of the Investor. This Agreement has been duly executed by the Investor, and (ii) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor it in accordance with its terms, except (i) as enforceability may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except generally, (ii) as limited by rules of law governing specific performance, injunctive relief, or other equitable remedies, (iii) as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as (iv) to the extent the indemnification agreements and contribution provisions contained in this Agreement may be limited by applicable federal or state securities laws or the public policy underlying such laws.
5.3 The Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is (i) acquiring the Securities and (ii) the shares of Common Stock receivable upon conversion or exercise thereof, in each case, for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in violation of the Securities Act; provided, however, that by making the representations herein, the Investor does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities under an exemption under the Securities Act and reserves the right to dispose of the Common Shares, Conversion Shares and Warrant Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. The Investor is acquiring the Securities hereunder in the ordinary course of its business.
5.5 The Investor understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein may be legally unenforceablein order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. 5.6 The Investor will not use any of and its advisors, if any, have been furnished with all publicly available materials relating to the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock business, finances and operations of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in such other publicly available materials relating to the holding offer and sale of the Shares.
5.6Securities as have been requested by the Investor. The Investor has consulted and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such legalinquiries nor any other due diligence investigations conducted by the Investor or its advisors, tax if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained herein. The Investor understands that its investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase the Securities involves a high degree of Sharesrisk.
5.7. 5.7 The Company acknowledges and agrees Investor understands that Investor does not make no United States federal or state agency or any other government or governmental agency has not passed on or made any representations recommendation or warranties with respect to endorsement of the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) Securities or the fairness or suitability of this Agreement, or the investment in the Confidentiality Agreement (as defined below)Securities, nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor hereby represents and warrants toto and covenants with the Company (which representations, warranties and covenants shall be true and correct as of the date hereof and as of the subscription date of the Additional Shares, and covenants with, will survive the Company execution and delivery of this Subscription Agreement) that: :
(i) the Investor is an "accredited investor" as defined in Regulation D under has the Securities Act legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Investor is also knowledgeablea corporation, sophisticated it is duly incorporated and experienced validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Investor;
(ii) entering into of this Subscription Agreement and the transactions contemplated hereby do not result in makingthe violation of any of the terms and provisions of any law applicable to, or the corporate documents of, the Investor or of any agreement, written or oral, to which the Investor may be a party or by which the Investor is or may be bound;
(iii) the Investor has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Investor enforceable against the Investor;
(iv) the Investor is not a U.S. Person;
(v) the Investor is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(vi) the Investor is resident of the jurisdiction set out under the heading “Name and Address of Investor” on the signature page of this Subscription Agreement;
(vii) the Investor is and will be outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Investor’s own account (except for the circumstances outlined in paragraph 5.1), for investment purposes only, and is qualified to make decisions not with respect to investments a view to, or for, resale, distribution or fractionalization thereof, in shares presenting an investment decision like that involved whole or in part, and no other person has a direct or indirect beneficial interest in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; ;
(iiix) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account Shares for investment only and not with a view to resale or distribution and, in particular, it has no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, to distribute either directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) indirectly any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and United States or to U.S. Persons;
(ivx) the Investor hasis not an underwriter of, or dealer in, the Shares of the Company, nor is the Investor participating, pursuant to a contractual agreement or otherwise, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering distribution of the Shares, or possession or distribution of offering materials ;
(xi) the Investor:
(a) is able to fend for itself in connection with the issue Offering; and
(b) has such knowledge and experience in business matters as to be capable of evaluating the Sharesmerits and risks of its prospective investment in the Company’s Shares offered hereby; and
(c) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(xii) if the Investor is acquiring the Shares as a fiduciary or agent for one or more investor accounts, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply has sole investment discretion with all applicable laws respect to each such account and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not full power to make any sale the foregoing acknowledgements, representations and agreements on behalf of the Shares without complying with the provisions of this Agreement such account, and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to itinvestor accounts, and if any, for which the Investor acts as a fiduciary or agent satisfy the definition of an “Accredited Investor”, as the term is defined in Rule 501 of Regulation D under the Act;
(xiii) the Investor acknowledges that the certificates evidencing Investor has not acquired the Shares will be imprinted with as a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants toresult of, and covenants withwill not itself engage in, any “directed selling efforts” (as defined in Regulation S under the Company Act) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares, provided, however, that the Investor may sell or otherwise dispose of any of the Shares pursuant to an effective registration statement under the Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(ixiv) the Investor acknowledges that:
(a) he has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance not received nor is he aware of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation any advertisement of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant Shares;
(b) no person has made to this Agreement to cover the Investor any short position in the Common Stock written or oral representations that any person will resell or repurchase any of the Company if doing so would be in violation shares; and
(c) no person will refund the purchase price of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale any of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).shares
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section paragraph 3 of the Stock Purchase first page of this Agreement in the ordinary course of its business and for its own account (or for the accounts of any of its affiliates to whom the Shares may be transferred) for investment only and with no present intention of distributing any of such Shares, or Shares in violation of the Securities Act nor does the Investor have any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has filled in all requested information on the first page and the signature page of this Agreement for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section paragraph 3 of the Stock Purchase first page of this Agreement, carefully read and relied only upon the Exchange Act Documents SEC Documents, other publicly available information and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. 5.2 The Investor acknowledges, represents and agrees acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and Agreement, including Section 7.2 hereof and, without effectively causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with (i) a legend that prohibits their transfer except in accordance therewith, and (ii) a legend required pursuant to the terms of the Rights Agreement. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. 5.5 The Investor will not use any not, prior to the effectiveness of the restricted Shares acquired pursuant Registration Statement, sell, offer to this Agreement sell, solicit offers to cover buy, dispose of, loan, pledge or grant any short position in right with respect to (collectively, a “Disposition”), the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise the Securities Act, nor will comply Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity in violation of the Securities Act. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box if such position was entered into after the effective date of this Agreement) or any purchase, sale or grant of any right (including without limitation any put or call option) with federal securities laws respect to the Common Stock of the Company or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Common Stock of the Company. Nothing in this Section 5.5 is intended or shall be construed as placing any limitations or restrictions on the Investor’s right to make any Dispositions of any shares of Common Stock the Investor holds in the holding Company in addition to and apart from the Shares; provided any such Dispositions do not violate the Securities Act.
5.6 The Investor understands that nothing in this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) (A) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesShares and the Warrant, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesShares and the Warrant and (B) the Company has made available to the Investor, prior to the date hereof, the opportunity to ask questions of and receive complete and correct answers from representatives of the Company concerning the terms and conditions of the Shares and the Warrant and to obtain any additional information relating to the financial condition and business of the Company (provided that any investigation conducted by the Investor shall not affect its right to rely on the representations and warranties of the Company contained herein) and the Investor has such knowledge and experience in financial and business matters that the Investor is capable of evaluating the merits and risks of the investment in the Shares and the Warrant; (ii) the Investor is acquiring the number of Shares and the Warrant to purchase the number of Warrant Shares, each as set forth in Section 3 of the Stock Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Warrant or Warrant Shares (other than pursuant to the Registration Statement or any exemption from the registration requirements of the Securities Act) or any arrangement or understanding with any other persons regarding the distribution of such Shares, Warrant or Warrant Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares and the Warrant except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete in all material respects as of the date hereof and will be true, correct and complete as of the Closing Date and the Filing Date; (v) the Investor will notify the Company of any change in any of such information until such time as the Investor has sold all of its Shares and Warrant Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares and the Warrant to purchase the number of Warrant Shares, each as set forth in Section 3 of the Stock Securities Purchase Agreement, relied only upon the Exchange Act Documents Documents, the information provided to it pursuant to clause (i)(B) of this Section 5.1 and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares and the Warrant has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares, Warrant or Warrant Shares for any period of time. The Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, Warrant or Warrant Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Warrant or Warrant Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers the Shares, Warrant or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares, Warrant or Warrant Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and and, if applicable, without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the Warrant and certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. 5.5 Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of establish an open "“put equivalent position" ” within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) 5 trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common StockAgreement. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement Agreement, or the Warrant Shares acquired pursuant to the Warrant, to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares, Warrant and Warrant Shares.
5.65.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Warrant or any other materials presented to the Investor in connection with the purchase and sale of the Shares and the Warrant constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesShares and the Warrant.
5.7. 5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 54 and 5 of this Agreement, 6 Sections 5 and 16(a) of Annex 1 of this Agreement, or in the Confidentiality Agreement (as defined below)Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. (a) The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act of 1933, as amended (the "Securities Act") and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesStock, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesStock; (ii) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, the Stock or any arrangement or understanding with any other persons regarding the distribution of such Sharesthe Stock; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares shares of Stock except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, has answered all questions on the signature page hereto for use in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares preparation for any period of time.the
5.2. (b) The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Sharesshares of Stock, or possession or distribution of offering materials in connection with the issue of the Sharesshares of Stock, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each The Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares shares of Stock or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. (c) The Investor hereby covenants with the Company not to make any sale of the Shares shares of Stock without complying with the provisions of this Agreement and the Registration Rights Agreement Agreement, including Section 7.2 hereof, and without complying with any effectively causing the prospectus delivery requirement then applicable under the Securities Act to it, and the be satisfied. The Investor acknowledges that there may occasionally be times when the certificates evidencing Company, based on the Shares will be imprinted with advice of its counsel, determines that it must suspend the use of the prospectus forming a legend that prohibits their transfer except in accordance therewithpart of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such prospectus.
5.4. (d) The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) upon the execution and delivery of this Agreement, this Agreement constitutes shall constitute a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements agreement of the Investor herein may be legally unenforceable.
5.5. Neither (e) Investor will not, prior to the Investor nor effectiveness of the Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock right with respect to (including without limitation any short salecollectively, a "Disposition"), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws by the Investor or any other person or entity. Such prohibited hedging or
(f) The Investor understands that nothing in the holding 1934 Act Filings, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Stock constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its the purchase of Sharesthe Stock.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: that (ia) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesSecurities; (iib) the Investor is acquiring the number of Shares, each as Preferred Shares set forth in Section 3 Article IV of the Stock attached Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (iiic) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (d) the Investor has answered all questions on the Investor Questionnaire and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (e) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Conversion Shares; and (ivf) the Investor has, in connection with its decision to purchase the number of Preferred Shares as set forth in Section 3 Article IV of the Stock attached Securities Purchase Agreement, relied only upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its neither the Offering nor the acquisition of the Shares has not Securities have been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws herein and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such information provided in the Investor’s Investor to hold the Shares for any period of timeQuestionnaire.
5.2. 5.2 The Investor acknowledges(other than individuals) is an entity duly organized, represents validly existing and agrees that no action has been or will be taken in any jurisdiction outside good standing under the United States by the Company that would permit an offering laws of the Shares, or possession or distribution jurisdiction of offering materials in connection its organization with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws full power and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby by this Agreement and has taken all necessary action otherwise to authorize the carry out its obligations hereunder. The execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement to be performed by the Investor have been duly authorized by all necessary corporate or similar action on the part of the Investor. This Agreement has been duly executed by the Investor, and (ii) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor it in accordance with its terms, except (a) as enforceability may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except generally, (b) as limited by rules of law governing specific performance, injunctive relief, or other equitable remedies, (c) as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and (d) to the extent any indemnification and except contribution provisions contained in this Annex I may be limited by applicable federal or state securities laws or the public policy underlying such laws.
5.3 The Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the indemnification agreements Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is (a) acquiring the Securities and (b) the shares of Common Stock receivable upon conversion thereof, in each case, for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in violation of the Securities Act; provided, however, that by making the representations herein, the Investor does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities under an exemption under the Securities Act and reserves the right to dispose of the Conversion Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. The Investor is acquiring the Securities hereunder in the ordinary course of its business.
5.5 The Investor understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein may be legally unenforceablein order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. 5.6 The Investor will not use any of and its advisors, if any, have been furnished with all publicly available materials relating to the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock business, finances and operations of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in such other publicly available materials relating to the holding offer and sale of the Shares.
5.6Securities as have been requested by the Investor. The Investor has consulted and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such legalinquiries nor any other due diligence investigations conducted by the Investor or its advisors, tax if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained herein. The Investor understands that its investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase the Securities involves a high degree of Sharesrisk.
5.7. 5.7 The Company acknowledges and agrees Investor understands that Investor does not make no United States federal or state agency or any other government or governmental agency has not passed on or made any representations recommendation or warranties with respect to endorsement of the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) Securities or the fairness or suitability of this Agreement, or the investment in the Confidentiality Agreement (as defined below)Securities, nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants (as of the date hereof) to, and covenants agrees with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agents that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the SharesUnits, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as Units set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations documents incorporated by reference therein and warranties the Offering Information and the representations, warranties, covenants and agreements of the Company contained herein. The Investor understands that its acquisition of in the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timePlacement Agreement.
5.2. The Investor acknowledges, represents and agrees that no 4.2 No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the SharesUnits, or possession or distribution of offering materials in connection with the issue of the Shares, Units in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Units or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants expense and (c) none of the Placement Agents is authorized to make or has made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Units, except as set forth or incorporated by reference in the provisions of this Agreement and Base Prospectus, any Issuer Free Writing Prospectus or the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithProspectus Supplement.
5.4. 4.3 The Investor further represents is either an individual or an entity duly organized, validly existing and warrants to, in good standing under the laws of the jurisdiction of its organization and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation). The Investor's execution, delivery and performance of this Agreement and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Investor's certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Investor is subject (including federal and state securities laws and regulations), or by which any property or asset of the Investor herein may be legally unenforceableis bound or affected.
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesUnits.
5.74.5 Since the time at which a Placement Agent first contacted the Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any transactions involving the securities of the Company (including, without limitation, any Short Sales involving the Company's securities). The Company acknowledges and agrees Investor covenants that Investor does not make or has not made any representations or warranties with respect to it will (i) maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby other than those specifically set forth herein and (ii) not engage in Sections 5any purchases or sales of the securities of the Company (including Short Sales), 6 and 16(a) in each case prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Units acquired pursuant to this Agreement, or Agreement to cover any short position in the Confidentiality Agreement Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, "Short Sales" include, without limitation, all "short sales" as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, "put equivalent positions" (as defined belowin Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.
Appears in 1 contract
Samples: Subscription Agreement (Magnum Hunter Resources Corp)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: :
4.1 The Investor (ia) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (iib) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty documents incorporated by such Investor to hold the Shares for any period of timereference therein.
5.2. The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expenseexpense and (c) the Company has not authorized anyone to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares, except as set forth or incorporated by reference in the base prospectus, the prospectus supplement or any free writing prospectus.
5.34.3 If the Investor is an officer or director of the Company, or more than 10% shareholder in the Company, the Investor acknowledges and agrees that the Shares delivered may be deemed to be “control securities” under Rule 144 promulgated under the Securities Act and, accordingly, the resale of the Shares may be restricted under Rule 144 and the Shares may be subject to a restrictive legend under the Securities Act. Such Investor shall comply with any xxxxxxx xxxxxxx policy adopted by the Company from time to time covering transactions in the Company’s securities by employees, officers or directors of the Company. The Investor hereby covenants with the Company agrees not to make any sale sell or otherwise dispose of the Shares without complying with the provisions in any manner which would constitute a violation of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithfederal or state securities laws.
5.4. 4.4 (a) The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the Investor herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5. Neither the 4.5 The Investor nor any person acting on its behalf or at its direction has engaged understands that nothing in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed tothe Disclosure Package, or which might be reasonably expected to, cause or result any other materials presented to the Investor in any manipulation of connection with the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company and the Current Stockholder that: (i) the Investor is an institutional "accredited investor" as defined in Regulation D paragraphs (1), (2), (3) or (7) of subsection (a) of Rule 501 under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as Shares set forth in Section 3 of on the Stock Purchase Agreement signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire hereto for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents and the representations and warranties of the Company and the Current Stockholder contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached as Exhibit B to the Exchange Act Documents, applicable securities laws which questionnaire is true, correct and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timecomplete in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and without causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company and the Current Stockholder that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The 5.5 Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws laws.
5.6 The Investor understands that nothing in the holding Exchange Act Documents, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1To induce the Company to accept this subscription, the Investor represents, warrants and covenants as follows:
(a) The Investor has been furnished and has carefully read the Memorandum relating to the offering of the Units by the Company, including all the exhibits and appendices thereto. The Investor represents is not relying upon any other information, representation or warranty by the Company or any agent of it in determining to invest in the Company. The Investor has consulted to the extent deemed appropriate by the Investor with the Investor’s own advisers as to the financial, tax, legal and warrants related matters concerning an investment in the Units and on that basis believes that an investment in the Units is suitable and appropriate for the Investor.
(b) The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Units, is able to bear the economic risks and lack of liquidity of an investment in the Units, is able to bear the risk of loss of its entire investment in the Units and understands the risks of, and other considerations relating to, the purchase of the Units, including the matters set forth under the caption “Risk Factors” in the Memorandum.
(c) The Investor understands that the Units have not been registered under the Securities Act, the securities laws of any state thereof or the securities laws of any other jurisdiction, nor is such registration contemplated. The Investor understands and agrees further that the Shares and Warrants constituting the Units must be held indefinitely and may only be transferred in accordance with the restrictions set forth in a legend substantially in the form set forth below which will be placed on the certificate or certificates evidencing the Shares and Warrants issued to the Investor at the Closing: THE SECURITIES REPRESENTED HEREBY MAY NOT BE TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144(K), OR (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933 OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS.
(d) The Investor is purchasing the Units for its own account, with the intention of holding the Shares and Warrants constituting the Units for investment and with no present intention of dividing or allowing others to participate in this investment or of reselling or otherwise participating, directly or indirectly, in a distribution of the Shares or Warrants. The Units to be acquired hereunder are being acquired by the Investor for investment purposes only and not with a view to resale or distribution.
(e) To the full satisfaction of the Investor, the Investor has been furnished any materials the Investor has requested relating to the Company, the offering of the Units or any statement made in the Memorandum, and the Investor has been afforded the opportunity to ask questions of representatives of the Company concerning the Company and the terms and conditions of the Offering, and to obtain any additional information necessary to verify the accuracy of the information set forth in the Memorandum and other information provided by the Company.
(f) The attached Investor Questionnaire that the Investor has completed and all of the statements, answers and information therein are true and correct as of the date hereof and will be true and correct as of the date of the Initial Closing or any subsequent closing, as the case may be. The Investor Questionnaire is incorporated herein by this reference.
(g) The foregoing representations, warranties, and covenants with, and all other information which the Investor has provided concerning the Investor and the Investor’s financial condition are true and accurate as of the date hereof. The Investor agrees to immediately notify the Company that: if any information, representations, warranties, and covenants of the Investor contained in this Subscription Agreement, including the Investor Questionnaire, becomes untrue prior to the Closing.
(h) All action on the part of the Investor, and if the Investor is a corporation, its officers, directors, and stockholders, necessary for the purchase of the Units pursuant hereto and the performance of the Investor's obligations hereunder, has been taken.
(i) the The Investor represents that it is an "accredited investor" as that term is defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of the Stock Purchase Agreement, relied upon the Exchange Act Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.
5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of SEC Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a501(a) of this AgreementRegulation D, or in the Confidentiality Agreement (as defined below17 C.F.R. 230.501(a).
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants (as of the date hereof) to, and covenants agrees with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agents that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring Questionnaire and the number of Shares, each answers thereto are true and correct as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business date hereof and for its own account for investment only will be true and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any correct as of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; Closing Date and (ivc) the Investor has, in connection with its decision to purchase the number of Shares as set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents Disclosure Package and the representations documents incorporated by reference therein and warranties the Offering Information and the representations, warranties, covenants and agreements of the Company contained herein. The Investor understands that its acquisition of in the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timePlacement Agreement.
5.2. The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. The Investor hereby covenants expense and (c) none of the Placement Agents is authorized to make or has made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Shares, except as set forth or incorporated by reference in the provisions of this Agreement and Base Prospectus, any Issuer Free Writing Prospectus or the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithProspectus Supplement.
5.4. (a) The Investor further represents is either an individual or an entity duly organized, validly existing and warrants to, in good standing under the laws of the jurisdiction of its organization and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (iib) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification agreements or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation). The Investor's execution, delivery and performance of this Agreement and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Investor's certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Investor is subject (including federal and state securities laws and regulations), or by which any property or asset of the Investor herein may be legally unenforceableis bound or affected.
5.5. Neither 4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other materials presented to the Investor nor any person acting on its behalf or at its direction has engaged in any connection with the purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the Common Stock. The Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.74.5 Since the time at which a Placement Agent first contacted the Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any transactions involving the securities of the Company (including, without limitation, any Short Sales involving the Company's securities). The Company acknowledges and agrees Investor covenants that Investor does not make or has not made any representations or warranties with respect to it will (i) maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby other than those specifically set forth herein and (ii) not engage in Sections 5any purchases or sales of the securities of the Company (including Short Sales), 6 and 16(a) in each case prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement, or Agreement to cover any short position in the Confidentiality Agreement Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, "Short Sales" include, without limitation, all "short sales" as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, "put equivalent positions" (as defined belowin Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.
Appears in 1 contract
Samples: Subscription Agreement (Houston American Energy Corp)
Representations, Warranties and Covenants of the Investor. 5.1. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an "“accredited investor" ” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesShares and the Warrant, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesShares and the Warrant; (ii) the Investor is acquiring the Warrant to purchase the number of Warrant Shares and the number of Shares, each as set forth in Section 3 of the Stock and Warrant Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Warrants or Warrant Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares, Warrant or Warrant Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,, purchase or otherwise acquire or take a pledge of) any of the Shares, Warrant or Warrant Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares and Warrant Shares or until the Company is no longer required to keep the Registration Statement effective; and (ivvi) the Investor has, in connection with its decision to purchase the number of Shares and the Warrant to purchase the number of Warrant Shares, each as set forth in Section 3 of the Stock and Warrant Purchase Agreement, Agreement relied only upon the Exchange Act Disclosure Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares and the Warrant has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's ’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares, Warrant or Warrant Shares for any period of time. The Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
5.2. 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, Warrant or Warrant Shares or possession or distribution of offering materials in connection with the issue of the Shares, Warrant or Warrant Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares, the Warrant or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3. 5.3 The Investor hereby covenants with the Company not to make any sale of the Shares, Warrant or Warrant Shares without complying with the provisions of this Agreement and without causing the Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable under the Securities Act to itbe satisfied (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement), and the Investor acknowledges that the certificates evidencing the Shares and Warrant Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).
5.4. 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ and contracting parties' ’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investor Investors herein may be legally unenforceable.
5.5. Neither 5.5 Between the time the Investor nor any person acting on its behalf or at its direction learned about the Offering and the public announcement of the Offering, the Investor has not engaged in any purchase short sales or sale of similar transactions with respect to the Common Stock (including without limitation any short sale)Stock, pledge, transfer, establishment of an open "put equivalent position" within nor has the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engageInvestor, directly or indirectly, caused any person to engage in any action designed to, short sales or which might be reasonably expected to, cause or result in any manipulation of the price of similar transactions with respect to the Common Stock. The Without limiting the foregoing, Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws laws.
5.6 The Investor understands that nothing in the holding Disclosure Documents, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares.
5.6Shares and the Warrant constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesShares and the Warrant.
5.7. The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 5, 6 and 16(a) of this Agreement, or in the Confidentiality Agreement (as defined below).
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Inhibitex Inc)
