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Common use of Representations, Warranties and Covenants of the Investor Clause in Contracts

Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company that: 4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Common Stock, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire 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 (c) in connection with its decision to purchase the number of shares of Common Stock set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein. Without limiting the generality of the foregoing, the Investor represents and affirms that none of the following information has ever been represented, guaranteed or warranted to the Investor, expressly or by implication, by any person: (i) the approximate or exact length of time that the Investor will be required to remain a security holder of the Company; (ii) the percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if any, as a result of an investment in the Company; or (iii) the possibility that the past performance or experience on the part of the Company or any affiliate, or any officer, director, equityholder, employee or agent of the Company, might in any way indicate or predict the results of ownership of any of the Common Stock or the potential success of the Company’s operations. 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 Common Stock, or possession or distribution of offering materials in connection with the issue of the Common Stock in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is 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 Common Stock or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Company has not made any representation, warranty, disclosure or use of any information in connection with the issue, purchase and sale of the Common Stock, except as set forth or incorporated by reference in the Base Prospectus, Preliminary Prospectus Supplement (if any) or the Prospectus Supplement. (a) 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 (b) 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 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). 4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Common Stock 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 the Common Stock. 4.5 Since the date on which the Company 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 disclose any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) or engage in any purchases, sales or other transactions in 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 Common Stock 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 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 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 does not have any contract, arrangement or understanding with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement.

Appears in 7 contracts

Samples: Subscription Agreement (Raser Technologies Inc), Subscription Agreement (Raser Technologies Inc), Subscription Agreement (Raser Technologies Inc)

Representations, Warranties and Covenants of the Investor. The Each Investor acknowledges, hereby represents and warrants to, and agrees covenants with, the Company that: 4.1 The Investor (a) is knowledgeable5.1 When the Securities are issued in accordance with the terms of this Agreement, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Common Stock, including investments in securities issued all interest obligations owed by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and to the Investor Questionnaire and the answers thereto are true and correct as on account of the date hereof and Notes will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of shares of Common Stock set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein. Without limiting the generality of the foregoing, the Investor represents and affirms that none of the following information has ever been represented, guaranteed or warranted to the Investor, expressly or by implication, by any person: (i) the approximate or exact length of time that the Investor will be required to remain a security holder of the Company; (ii) the percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if any, as a result of an investment in the Company; or (iii) the possibility that the past performance or experience on the part of the Company or any affiliate, or any officer, director, equityholder, employee or agent of the Company, might in any way indicate or predict the results of ownership of any of the Common Stock or the potential success of the Company’s operationscurrent. 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 Common Stock, or possession or distribution of offering materials in connection with the issue of the Common Stock in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is 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 Common Stock or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Company has not made any representation, warranty, disclosure or use of any information in connection with the issue, purchase and sale of the Common Stock, except as set forth or incorporated by reference in the Base Prospectus, Preliminary Prospectus Supplement (if any) or the Prospectus Supplement. (a) 5.2 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 (b) this Agreement constitutes 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 may be subject to or limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting creditors’ the rights of creditors generally. 5.3 The entry into and contracting parties’ rights generally performance of this Agreement by the Investor and except as enforceability may be subject to general principles the consummation by the Investor of equity the transactions contemplated hereby and thereby will not (regardless of whether such enforceability is considered i) result in a proceeding in equity violation of the organizational documents of the Investor, (ii) conflict with, or at law) and except as constitute a default under, or give to the enforceability others any rights of termination, amendment, acceleration or cancellation of any rights agreement, indenture or instrument to indemnification which the Investor is party, or contribution that may be violative (iii) result in the violation of the public policy underlying any law, rule rule, regulation, order, judgment or regulation decree (including any federal or and state securities lawlaws) applicable to the Investor, rule except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or regulation)violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Investor to perform its obligations hereunder. 4.4 5.4 The Investor understands that nothing in this Agreement, information the Prospectus Company has filed with and furnished to the Commission or any other materials presented to the Investor in connection with the purchase and sale of the Common Stock Securities 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 the Common Stock. 4.5 Since Securities and has made its own assessment and has satisfied itself concerning the date on which the Company 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 relevant 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 Investor covenants that it will not disclose any information regarding the Offering economic considerations relevant to any third parties (other than its legal, accounting and other advisors) or engage in any purchases, sales or other transactions investment in 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 Common Stock 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 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 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 brokersSecurities. 4.6 The Investor does not have any contract, arrangement or understanding with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement.

Appears in 4 contracts

Samples: Securities Purchase Agreement (Xtant Medical Holdings, Inc.), Securities Purchase Agreement (Xtant Medical Holdings, Inc.), Securities Purchase Agreement (Xtant Medical Holdings, Inc.)

Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that: 4.1 4.1. The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Common StockShares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire 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 (c) in connection with its decision to purchase the number of shares of Common Stock Shares set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein. Without limiting therein and the generality of the foregoing, the Investor represents and affirms that none of the following information has ever been represented, guaranteed or warranted to the Investor, expressly or by implication, by any person: (i) the approximate or exact length of time that the Investor will be required to remain a security holder of the Company; (ii) the percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if any, as a result of an investment in the Company; or (iii) the possibility that the past performance or experience on the part of the Company or any affiliate, or any officer, director, equityholder, employee or agent of the Company, might in any way indicate or predict the results of ownership of any of the Common Stock or the potential success of the Company’s operationsOffering Information. 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 Common StockShares, or possession or distribution of offering materials in connection with the issue of the Common Stock Shares in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is 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 Common Stock Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Company Placement Agent is not authorized to make and has not made any representation, warranty, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Common StockShares, except as set forth or incorporated by reference in the Base Preliminary Prospectus, Preliminary Prospectus Supplement (if any) or the Prospectus Supplementor any free writing prospectus. (a) 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 (b) 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 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). 4.4 4.4. The Investor understands that nothing in this Agreement, the Preliminary Prospectus, the Disclosure Package, the Offering Information, the Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Common Stock Shares 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 the Common StockShares. 4.5 Since the date on which the Company 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 disclose any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) or engage in any purchases, sales or other transactions in 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 Common Stock 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 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 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 does not have any contract, arrangement or understanding with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement.

Appears in 2 contracts

Samples: Placement Agent Agreement (Tecogen Inc.), Subscription Agreement (Tecogen Inc.)

Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that: 4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Common StockUnits, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire 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 (c) in connection with its decision to purchase the number of shares of Common Stock Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein. Without limiting therein and the generality of the foregoing, the Investor represents and affirms that none of the following information has ever been represented, guaranteed or warranted to the Investor, expressly or by implication, by any person: (i) the approximate or exact length of time that the Investor will be required to remain a security holder of the Company; (ii) the percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if any, as a result of an investment in the Company; or (iii) the possibility that the past performance or experience on the part of the Company or any affiliate, or any officer, director, equityholder, employee or agent of the Company, might in any way indicate or predict the results of ownership of any of the Common Stock or the potential success of the Company’s operationsOffering Information. 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 Common StockUnits, or possession or distribution of offering materials in connection with the issue of the Common Stock Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is 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 Common Stock Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Company Placement Agent is not authorized to make and has not made any representation, warranty, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Common StockUnits, except as set forth or incorporated by reference in the Base Prospectus, Preliminary the Prospectus Supplement (if any) or the Prospectus Supplementany free writing prospectus. (a) 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 (b) 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 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). 4.4 The Investor understands that nothing in this Agreement, the Prospectus Prospectus, the Disclosure Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Common Stock Units 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 Units. The Investor also understands that there is no established public trading market for the Common StockWarrants 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. 4.5 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 date on time at which the Company Placement Agent first contacted the such 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 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 disclose any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) or engage in any purchases, purchases or sales or other transactions in 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 Common Stock 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 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 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 U.S. broker dealers or foreign regulated brokers. 4.6 The Investor does not have any contract, arrangement or understanding with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement.

Appears in 2 contracts

Samples: Subscription Agreement (Bionovo Inc), Subscription Agreement (Cyclacel Pharmaceuticals, Inc.)

Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company that: 4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Common StockShares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire 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 Date, (c) in connection with its decision to purchase the number of shares of Common Stock Shares set forth on the Signature PageSchedule A, has received and is relying only solely upon (i) the Disclosure Package and the documents incorporated by reference therein. Without limiting the generality of the foregoing, the Investor represents therein and affirms that none of the following information has ever been represented, guaranteed or warranted to the Investor, expressly or by implication, by any person: (i) the approximate or exact length of time that the Investor will be required to remain a security holder of the Company; (ii) the percentage of profit and/or amount of Offering Information, and not any other preliminary or type of considerationfinal prospectus pursuant to the Registration Statement and (d) the Investor it is responsible for conducting its own due diligence investigation with respect to the Company and the Offering, profit or loss to be realized, if any, as a result of an investment it is purchasing Shares in the Company; or (iii) the possibility that the past performance or experience Offering based on the part results of the Company or any affiliate, or any officer, director, equityholder, employee or agent its own due diligence investigation of the Company, might it has negotiated the Offering directly with the Company and the decision to invest in any way indicate or predict the results Offering will involve a significant degree of ownership risk, including a risk of any total loss of the Common Stock or the potential success of the Company’s operationssuch investment. 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 Common StockShares, or possession or distribution of offering materials in connection with the issue of the Common Stock Shares in any jurisdiction outside the United States where action for that purpose is required, required and (b) if the Investor is 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 Common Stock Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Company has not made any representation, warranty, disclosure or use of any information in connection with the issue, purchase and sale of the Common Stock, except as set forth or incorporated by reference in the Base Prospectus, Preliminary Prospectus Supplement (if any) or the Prospectus Supplementexpense. (a) 4.3 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 (b) 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 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). 4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Common Stock Shares 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. The Investor acknowledges that the Company is conducting a concurrent public offering of Common StockStock through a syndicate of underwriters (the “Underwriters”). Investor acknowledges that the Underwriters have not made any offer, representation or warranty with respect to the Offering, and Investor has not relied, and will not rely, on any statement made by the Underwriters, orally or in writing, to the contrary. 4.5 Since the date on which the Company first contacted the such 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 transactions in the securities of the Company (including, without limitation, any Short Sales (as defined below) involving the Company’s securities)) and has not violated its obligations of confidentiality. The Each Investor covenants that it will not disclose any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) or engage in any purchases, sales or other transactions in the securities of the Company (including Short Sales) or 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 by this Agreement are publicly disclosed. The Each Investor agrees that it will not use any of the Common Stock 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 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 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 does not have any contract, arrangement or understanding with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Subscription Agreement (Eagle Bulk Shipping Inc.)

Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Agent, that: 4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Common StockUnits, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire 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 (c) in connection with its decision to purchase the number of shares of Common Stock Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein. Without limiting therein and the generality of the foregoing, the Investor represents and affirms that none of the following information has ever been represented, guaranteed or warranted to the Investor, expressly or by implication, by any person: (i) the approximate or exact length of time that the Investor will be required to remain a security holder of the Company; (ii) the percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if any, as a result of an investment in the Company; or (iii) the possibility that the past performance or experience on the part of the Company or any affiliate, or any officer, director, equityholder, employee or agent of the Company, might in any way indicate or predict the results of ownership of any of the Common Stock or the potential success of the Company’s operationsOffering Information. 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Agent that would permit an offering of the Common StockUnits, or possession or distribution of offering materials in connection with the issue of the Common Stock Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is 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 Common Stock Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Company Agent is not authorized to make and has not made any representation, warranty, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Common StockUnits, except as set forth or incorporated by reference in the Base Prospectus, Preliminary the Prospectus Supplement (if any) or the Prospectus Supplementany Issuer Free Writing Prospectus. (a) 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 (b) 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 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). 4.4 The Investor understands that nothing in this Agreement, the Prospectus Prospectus, the Disclosure Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Common Stock Units 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 the Common StockUnits. 4.5 Since the date on which the Company any 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 disclose any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) or engage in any purchases, purchases or sales or other transactions in the securities of the Company (including Short Sales) or disclose any information about the Offering (other than to its advisors that are under a legal 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 Common Stock 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 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 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 does not have any contract, arrangement or understanding with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Subscription Agreement (Thermogenesis Corp)

Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that: 4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Common StockUnits, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire 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 (c) in connection with its decision to purchase the number of shares of Common Stock Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein. Without limiting therein and the generality of the foregoing, the Investor represents and affirms that none of the following information has ever been represented, guaranteed or warranted to the Investor, expressly or by implication, by any person: (i) the approximate or exact length of time that the Investor will be required to remain a security holder of the Company; (ii) the percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if any, as a result of an investment in the Company; or (iii) the possibility that the past performance or experience on the part of the Company or any affiliate, or any officer, director, equityholder, employee or agent of the Company, might in any way indicate or predict the results of ownership of any of the Common Stock or the potential success of the Company’s operationsOffering Information. 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 Common StockUnits, or possession or distribution of offering materials in connection with the issue of the Common Stock Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is 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 Common Stock Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Company Placement Agent is not authorized to make and has not made any representation, warranty, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Common StockUnits, except as set forth or incorporated by reference in the Base Prospectus, Preliminary the Prospectus Supplement (if any) or the Prospectus Supplementany free writing prospectus. (a) 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 (b) 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 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). 4.4 The Investor understands that nothing in this Agreement, the Prospectus Prospectus, the Disclosure Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Common Stock Units 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 Units. The Investor also understands that there is no established public trading market for the Common StockWarrants 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. 4.5 Since the date on which the Company 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 disclose any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) or engage in any purchases, purchases or sales or other transactions in involving 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 Common Stock 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 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 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 does not have any contract, arrangement or understanding with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Subscription Agreement (Biodel Inc)

Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that: 4.1 The Investor (a) is an “accredited investor” (as such term is defined in Section 501(a) of the Act), (b) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Common StockShares, including investments in securities issued by the Company and investments in comparable companies, (bc) is capable of bearing a loss of the entire amount of such Investor’s purchase of the Shares, based on the Investor’s net worth, annual income and liquid assets, (d) is suitable to make an investment in the amount of Shares such Investor plans to purchase, based on such Investor’s net worth, annual income and liquid assets, and based on such Investor’s past experience in investing in comparable companies, (e) has answered all questions on the Signature Page and the Investor Questionnaire 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 (cf) in connection with its decision to purchase the number of shares of Common Stock Shares set forth on the Signature Page, has received and is relying only upon the Disclosure Package and Package, the documents incorporated by reference therein. Without limiting therein and the generality of the foregoing, the Investor represents and affirms that none of the following information has ever been represented, guaranteed or warranted to the Investor, expressly or by implication, by any person: (i) the approximate or exact length of time that the Investor will be required to remain a security holder of the Company; (ii) the percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if any, as a result of an investment in the Company; or (iii) the possibility that the past performance or experience on the part of the Company or any affiliate, or any officer, director, equityholder, employee or agent of the Company, might in any way indicate or predict the results of ownership of any of the Common Stock or the potential success of the Company’s operationsOffering Information. 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 Common StockShares, or possession or distribution of offering materials in connection with the issue of the Common Stock Shares in any jurisdiction outside the United States where action for that purpose is required, and (b) if the Investor is 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 Common Stock Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Company has not made any representation, warranty, disclosure or use of any information in connection with the issue, purchase and sale of the Common Stock, except as set forth or incorporated by reference in the Base Prospectus, Preliminary Prospectus Supplement (if any) or the Prospectus Supplementexpense. (a) 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 (b) 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 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). 4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Common Stock Shares 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 the Common StockShares. 4.5 Since the date on which the Company Placement Agent first contacted the such 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 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. The Each Investor covenants that it will not disclose any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) or engage in any purchases, sales or other transactions in the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Each Investor agrees that it will not use any of the Common Stock 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 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 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 does represents that (a) 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, (b) neither it, nor any group of which it is a member or to which it is related, beneficially owns (including the right to acquire or vote) any securities of the Company, and (c) it is not have any contracta, arrangement and it has no direct or understanding indirect affiliation or association with any brokerany, finder or similar agent with respect to FINRA member as of the transactions contemplated by this Agreementdate hereof.

Appears in 1 contract

Samples: Subscription Agreement (Electro Optical Sciences Inc /Ny)

Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company that: 4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities Units presenting an investment decision like that involved in the purchase of the Common StockUnits, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire 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 (c) in connection with its decision to purchase the number of shares of Common Stock Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein. Without limiting the generality of the foregoing, the Investor represents and affirms that none of the following information has ever been represented, guaranteed or warranted to the Investor, expressly or by implication, by any person: (i) the approximate or exact length of time that the Investor will be required to remain a security holder of the Company; (ii) the percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if any, as a result of an investment in the Company; or (iii) the possibility that the past performance or experience on the part of the Company or any affiliate, or any officer, director, equityholder, employee or agent of the Company, might in any way indicate or predict the results of ownership of any of the Common Stock Securities or the potential success of the Company’s operations. 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 Common StockSecurities, or possession or distribution of offering materials in connection with the issue of the Common Stock Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is 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 Common Stock Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Company has not made any representation, warranty, disclosure or use of any information in connection with the issue, purchase and sale of the Common StockUnits, except as set forth or incorporated by reference in the Base Prospectus, Preliminary Prospectus Supplement (if any) or the Prospectus Supplement. (a) 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 (b) 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 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). 4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Common Stock Units 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 the Common StockUnits. 4.5 Since the date on which the Company 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 disclose any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) or engage in any purchases, sales or other transactions in 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 Common Stock Units 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 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 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 does not have any contract, arrangement or understanding with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Subscription Agreement (Raser Technologies Inc)

Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company that: 4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities Units presenting an investment decision like that involved in the purchase of the Common StockUnits, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire 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 (c) in connection with its decision to purchase the number of shares of Common Stock Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein. Without limiting the generality of the foregoing, the Investor represents and affirms that none of the following information has ever been represented, guaranteed or warranted to the Investor, expressly or by implication, by any person: (i) the approximate or exact length of time that the Investor will be required to remain a security holder of the Company; (ii) the percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if any, as a result of an investment in the Company; or (iii) the possibility that the past performance or experience on the part of the Company or any affiliate, or any officer, director, equityholder, employee or agent of the Company, might in any way indicate or predict the results of ownership of any of the Common Stock Securities or the potential success of the Company’s 's operations. 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 Common StockSecurities, or possession or distribution of offering materials in connection with the issue of the Common Stock Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is 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 Common Stock Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Company has not made any representation, warranty, disclosure or use of any information in connection with the issue, purchase and sale of the Common StockUnits, except as set forth or incorporated by reference in the Base Prospectus, Preliminary Prospectus Supplement (if any) or the Prospectus Supplement. (a) 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 (b) 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 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). 4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Common Stock Units 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 the Common StockUnits. 4.5 Since the date on which the Company 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 's securities). The Investor covenants that it will not disclose any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) or engage in any purchases, sales or other transactions in 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 Common Stock Units 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 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 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 does not have any contract, arrangement or understanding with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Subscription Agreement (Raser Technologies Inc)

Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that: 4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Common StockShares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire 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 (c) in connection with its decision to purchase the number of shares of Common Stock Shares set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein. Without limiting therein and the generality of the foregoing, the Investor represents and affirms that none of the following information has ever been represented, guaranteed or warranted to the Investor, expressly or by implication, by any person: (i) the approximate or exact length of time that the Investor will be required to remain a security holder of the Company; (ii) the percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if any, as a result of an investment in the Company; or (iii) the possibility that the past performance or experience on the part of the Company or any affiliate, or any officer, director, equityholder, employee or agent of the Company, might in any way indicate or predict the results of ownership of any of the Common Stock or the potential success of the Company’s operationsOffering Information. 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 Common StockShares, or possession or distribution of offering materials in connection with the issue of the Common Stock Shares in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is 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 Common Stock Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Company Placement Agent is not authorized to make and has not made any representation, warranty, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Common StockShares, except as set forth or incorporated by reference in the Base Preliminary Prospectus, Preliminary Prospectus Supplement (if any) or the Prospectus Supplementor any free writing prospectus. (a) 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 (b) 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 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). 4.4 The Investor understands that nothing in this Agreement, the Preliminary Prospectus, the Disclosure Package, the Offering Information, the Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Common Stock Shares 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 the Common StockShares. 4.5 Since the date on which the Company 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 disclose any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) or engage in any purchases, sales or other transactions in 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 Common Stock 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 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 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 does not have any contract, arrangement or understanding with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Subscription Agreement (Tecogen Inc.)

Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company that: 4.1 6.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Common StockUnits, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire 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 (c) in connection with its decision to purchase the number of shares of Common Stock Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package and (including the documents incorporated by reference therein. Without limiting the generality of the foregoing, the Investor represents and affirms that none of the following information has ever been represented, guaranteed or warranted to the Investor, expressly or by implication, by any person: (i) the approximate or exact length of time that the Investor will be required to remain a security holder of the Company; (ii) the percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if any, as a result of an investment in the Company; or (iii) the possibility that the past performance or experience on the part of the Company or any affiliate, or any officer, director, equityholder, employee or agent of the Company, might in any way indicate or predict the results of ownership of any of the Common Stock or the potential success of the Company’s operations). 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 Common StockUnits, or possession or distribution of offering materials in connection with the issue of the Common Stock Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is 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 Common Stock Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) no agent of the Company has not been authorized to make and no such agent has made any representation, warranty, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Common StockUnits, except as set forth in the Issuer Free Writing Prospectus or as set forth in or incorporated by reference in the Base Prospectus, Preliminary Prospectus Supplement (if any) or the Prospectus SupplementSupplement or as otherwise contemplated by this Agreement. (a) 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 (b) 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 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). 4.4 6.4 The Investor understands that nothing in this Agreement, the Prospectus Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Common Stock Units 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 Units. The Investor also understands that there is no established public trading market for the Common StockWarrants 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. 4.5 6.5 Since the date on which the Company first contacted the such Investor about the OfferingOffering or such Investor first learned of the Offering from its investment manager, whichever occurred first, 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 transactions in the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities). The Each Investor covenants that it will not disclose any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) or engage in any purchases, sales or other transactions in the securities of the Company (including Short Sales) or disclose any information about the Offering (other than to its advisors that are under a legal obligation of confidentiality) prior to the later of (a) the time that the transactions contemplated by this Agreement are publicly discloseddisclosed and (b) the open of regular trading on The NASDAQ Global Market on December 30, 2008. The Each Investor agrees that it will not use any of the Common Stock 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 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 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 does not have any contract, arrangement or understanding with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Purchase Agreement (Xenoport Inc)

Representations, Warranties and Covenants of the Investor. 4.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: 4.1 The Investor that (a) the Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Common StockUnits, 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 Units, (b) the Investor has answered all questions on the Signature Page and for use in preparation of the Investor Questionnaire Prospectus Supplement 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 Date, (c) the Investor, in connection with its decision to purchase the number of shares of Common Stock Units set forth on the Signature Page, has received and is relying relied only upon the Disclosure Package and the documents incorporated by reference therein. Without limiting the generality of the foregoingBase Prospectus, the Investor represents and affirms that none Time of the following information has ever been represented, guaranteed or warranted to the Investor, expressly or by implication, by any person: (i) the approximate or exact length of time that the Investor will be required to remain a security holder of the Company; (ii) the percentage of profit and/or amount of or type of consideration, profit or loss to be realizedSale Prospectus, if any, as a result of an investment in the Company; or (iii) ’s regular reports on Forms 10-K, 10-Q and 8-K as filed by the possibility that Company with the past performance or experience on Commission, and the part representations and warranties of the Company contained herein and (d) the Investor is an “accredited investor” within the meaning of Rule 501(a)(1), (2) or any affiliate(3) under the Securities Act of 1933, or any officer, director, equityholder, employee or agent of as amended (the Company, might in any way indicate or predict the results of ownership of any of the Common Stock or the potential success of the Company’s operations“Securities Act”). 4.2 (a) No 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 Common StockUnits, or possession or distribution of offering materials in connection with the issue of the Common Stock Units in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Common Stock Units or has in its possession or distributes any offering material, in all cases at its own expense expense. The Placement Agents are not authorized to make and (c) the Company has have not made any representation, warranty, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Common StockUnits, except as set forth or incorporated by reference in the Base Prospectus, Preliminary Prospectus Supplement (the Time of Sale Prospectus, if any) , or the Prospectus Supplement. 4.3 The Investor further represents and warrants to, and covenants with, the Company that (a) The 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 (b) 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 indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)legally unenforceable. 4.4 The Investor understands that nothing in this Agreement, the Prospectus Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Common Stock Shares 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 the Common StockUnits. 4.5 Since The Investor represents that the final Base Prospectus, dated November 14, 2005, which is a part of the Company’s Registration Statement, has been delivered or otherwise made available to the Investor for its review prior to or in connection with the receipt of this Agreement. The Investor acknowledges that the Prospectus Supplement and, if applicable, the Time of Sale Prospectus will be delivered, or otherwise made available to the Investor before this Agreement will be deemed to be effective. 4.6 The Investor represents, warrants and agrees that, since the earlier to occur of (i) the date on which the Company Placement Agents first contacted the Investor about the OfferingOffering and (ii) the date that is the tenth (10th) trading day prior to the date of this Agreement, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and it has not engaged in any purchases or sales involving the securities short selling of the Company (including, without limitation, any Short Sales involving the Company’s securities). The Investor covenants that it will not disclose , or established or increased any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) or engage in any purchases, sales or other transactions in 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 Common Stock 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 salesput equivalent position” as defined in Rule 200 promulgated under Regulation SHO 16(a)-1(h) 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 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 does not have any contract, arrangement or understanding with any broker, finder or similar agent with respect to the transactions contemplated Company’s securities. 4.7 The Investor understands that, upon receipt of a written notice (without notice of the nature or details of the events) from the Company of the commencement of a Black Out Period (as defined below) (each a “Black Out Notice”), the Investor will promptly discontinue disposition of the Warrant Shares pursuant to the Registration Statement until the earlier of (i) the end of the Black Out Period and (ii) the date on which the Investor is advised by this Agreementthe Company of the termination of the Black Out Period and the Investor receives copies of a supplemented or amended prospectus (or until the Investor is advised by the Company that the use of the Prospectus Supplement may be resumed).

Appears in 1 contract

Samples: Subscription Agreement (GTC Biotherapeutics Inc)