Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that: (b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber; (c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound; (d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms; (e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation; (f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person; (g) the Subscriber is not a U.S. Person; (h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement; (i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber; (j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares; (k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares; (l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment; (m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein; (n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and (o) no person has made to the Subscriber any written or oral representations: (i) that any person will resell or repurchase any of the Securities; (ii) that any person will refund the purchase price of any of the Securities; (iii) as to the future price or value of any of the Securities; or (iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 8 contracts
Samples: Private Placement Subscription Agreement (Momentous Holdings Corp.), Private Placement Subscription Agreement (Momentous Holdings Corp.), Private Placement Subscription Agreement (Midwest Oil & Gas Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ed) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(fe) the Subscriber is not acquiring the Shares Units for the account or benefit of, directly or indirectly, any U.S. Person;
(gf) the Subscriber is not a U.S. Person;
(hg) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ih) the sale of the Shares Units to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(ji) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Units as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesUnits;
(kj) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesUnits;
(lk) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesUnits; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(ml) the Subscriber acknowledges that the Subscriber has not acquired the Shares Units as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of the Shares Units 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 the Shares or Warrant Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares or Warrant Shares pursuant to registration of the Shares or Warrant Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nm) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Units as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(on) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 8 contracts
Samples: Private Placement Subscription Agreement (Ifan Financial, Inc.), Private Placement Subscription Agreement (Powder River Coal Corp.), Private Placement Subscription Agreement (Powder River Coal Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) the Subscriber is not a U.S. Person, as that term is defined in accordance with its termsRegulation S;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person, as that term is defined in Regulation S;
(f) if the Subscriber is a resident of Canada, the Subscriber is an Accredited Investor (as defined in National Instrument 45-106) and the Subscriber agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Agreement:
(i) a fully completed and executed Questionnaire in the form attached as Exhibit A hereto; and
(ii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as an Accredited Investor;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ih) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(ji) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s 's own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(j) the decision to execute this Agreement and acquire the Shares hereunder has not been based upon any oral or written representation as to fact or otherwise made by or on behalf of the Company;
(k) the Subscriber is acquiring the Shares as principal for its own account for investment purposes only and not for the account of any other person and not for distribution, assignment or resale to others, and no other person has a direct or indirect beneficial interest in such Shares, and it has not subdivided its interest in the Shares with any other person;
(l) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Form 10-KSB and any other filings filed with the SEC;
(m) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Shares and the Company;
(n) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(o) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(p) the Company is entitled to rely on the representations and warranties of the Subscriber contained in this Agreement and the Questionnaire and the Subscriber will indemnify and hold harmless the Company and, where applicable, its directors, officers, employees, agents, advisors and shareholders, from and against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any representation or warranty of the Subscriber contained herein, the Questionnaire or in any document furnished by the Subscriber to the Company in connection herewith being untrue in any material respect or any breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(q) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(r) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(s) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesShares or any of them;
(lt) the Subscriber (i) is able to fend for him/her/itself understands and agrees that none of the Shares have been or will, except as set forth in this Agreement, be registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the Subscription; (ii) has such knowledge United States or, directly or indirectly, to U.S. Persons, as that term is defined in Regulation S, except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment each case only in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentaccordance with applicable state securities laws;
(mu) the Subscriber acknowledges that the Subscriber 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 0000 XxxS) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nv) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(w) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(x) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(y) the Subscriber is not aware of any advertisement of of, or any general solicitation in respect of, any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(oz) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company Shares on any stock exchange or automated dealer quotation system; except that the Company’s Common Stock is currently approved for trading on the U.S. Over the Counter Bulletin Board.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 6 contracts
Samples: Private Placement Subscription Agreement (Jammin Java Corp.), Private Placement Subscription Agreement (Jammin Java Corp.), Private Placement Subscription Agreement (Ayers Exploration Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ed) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(fe) the Subscriber is not acquiring the Shares Units for the account or benefit of, directly or indirectly, any U.S. Person;
(gf) the Subscriber is not a U.S. Person;
(hg) the Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(ih) the sale of the Shares Units to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(ji) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Units as principal for the Subscriber’s 's own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesUnits;
(kj) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesUnits;
(lk) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesUnits; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(ml) the Subscriber acknowledges that the Subscriber has not acquired the Shares Units as a result of, and will not itself engage in, any “"directed selling efforts” " (as defined in Regulation S under the 0000 Xxx) in the United States in respect of the Shares Units 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 the Shares or Warrant Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares or Warrant Shares pursuant to registration of the Shares or Warrant Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nm) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Units as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(on) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 4 contracts
Samples: Private Placement Subscription Agreement (Liberty Star Gold Corp), Private Placement Subscription Agreement (Lusora Healthcare Systems Inc.), Private Placement Subscription Agreement (Lusora Healthcare Systems Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) ), and acknowledges that the Company is relying thereon, that:
(a) the Subscriber is not a U.S. Person as that term is defined in Regulation S;
(b) the Subscriber is not acquiring the Note for the account or benefit of, directly or indirectly, any U.S. Person as that term is defined in Regulation S;
(c) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and upon acceptance thereof by the Company it will constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(eg) the Subscriber is acquiring the Securities pursuant to an exemption from the registration as principal for its own account for investment purposes only and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account of any other person and not for distribution, assignment or benefit ofresale to others, directly and no other person has a direct or indirectlyindirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any U.S. Person;
(g) the Subscriber is not a U.S. Personother person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Note as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(i) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Forms 00-X, 00-X, 0-X and any other filings filed with the SEC;
(j) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(k) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(n) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(o) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company’s Shares, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the Shares;
(lp) the Subscriber is not an underwriter of, or dealer in, the Company’s Shares, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the Securities;
(q) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of restricted period after the date of original issuance of the Securities (the six month period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state securities laws;
(r) the Subscriber agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(s) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) 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 SharesSecurities and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mt) the Subscriber acknowledges that will indemnify the Subscriber has not acquired the Shares as a result ofCompany against, and will not itself engage inhold the Company and, where applicable, its respective directors, officers, employees, agents, advisors and shareholders harmless from, any “directed selling efforts” and all loss, liability, claim, damage and expense whatsoever (as defined including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in Regulation S under the 0000 Xxxinvestigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) in the United States in respect arising out of or based upon any representation or warranty of the Shares which would include Subscriber contained herein or in 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 the Shares; provided, however, that document furnished by the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and Company in connection herewith being untrue in any applicable state and federal securities laws material respect or under an exemption from such registration requirements and as otherwise provided hereinany breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(nu) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ov) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently the Company’s common shares are quoted on the over-the-counter market operated by the Over-The-Counter Bulletin Board operated by FINRA.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 4 contracts
Samples: Subscription Agreement (Basta Holdings, Corp.), Subscription Agreement (Toron Inc.), Subscription Agreement (Mokita, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 1000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 4 contracts
Samples: Private Placement Subscription Agreement (Bespoke Tricycles Inc), Private Placement Subscription Agreement (Americas Diamond Corp.), Private Placement Subscription Agreement (GreenChoice International, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to to, and covenants with with, the Company (which representations, warranties and covenants shall survive the Closing) and acknowledges that the Company is relying thereon that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and and, upon acceptance thereof by the Company, it constitutes will constitute a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(fd) the Subscriber is not acquiring the Shares Units for the account or benefit of, directly or indirectly, any U.S. Person;
(ge) the Subscriber is not a U.S. Person, as that term is defined in Regulation S;
(hf) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ig) the sale Subscriber has inquired into the applicable securities legislation of the Shares to its jurisdiction of residence and the Subscriber as contemplated in this Subscription Agreement either complies with or is exempt from the applicable securities legislation of the Subscriber's jurisdiction of residence of the Subscriberresidence;
(jh) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s 's own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in any of the Securities;
(i) if the Subscriber is a resident of Canada, the Subscriber is purchasing the Units pursuant to an exemption from the registration and the prospectus requirements of applicable securities legislation on the basis that the Subscriber is a resident of Canada and an “accredited investor” as defined in Section 1.1 of NI 45-106 (hereinafter, an “Accredited Investor”) and, as a consequence:
(i) is restricted from using most of the civil remedies available under securities legislation,
(ii) may not receive information that would otherwise be required to be provided under securities legislation, and
(iii) the Company is relieved from certain obligations that would otherwise apply under securities legislation;
(j) the Subscriber is an Accredited Investor and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Agreement:
(i) a fully completed and executed Accredited Investor Questionnaire in the form attached as Exhibit B hereto; and
(ii) such Sharesother supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as an Accredited Investor;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the CompanyCommon Stock, nor is the Subscriber an affiliate of any underwriter of or dealer in the Securities, nor is it participating, pursuant to a contractual agreement contract or otherwise, in the any distribution of the SharesSecurities;
(l) the Subscriber agrees that, unless and until the Securities have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, it will not offer or sell its Securities in the United States, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act;
(m) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iiiii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mn) if the Subscriber is acquiring the Securities as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber acknowledges that 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
(ii) if the Subscriber or the beneficial owner of the investor account(s) is a Canadian resident, the beneficial owners of the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an “Accredited Investor”, as the term is defined in the Canadian National Instrument NI 45-106;
(o) the Subscriber has not acquired the Shares Units as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 XxxS) in the United States in respect of any of the Shares Securities 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose any of the Shares Securities;
(p) any offer or and sale of any of the Securities prior to the expiration of a period of six months after the date of original issuance of that respective Security (the six-month period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the Shares pursuant to 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(q) it will not engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and any in each case only in accordance with applicable state and federal provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of of, or any general solicitation in respect of, any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingSecurities; and
(or) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system; except that the Company’s Common Stock is currently approved for trading on the U.S. Over the Counter Bulletin Board and the Canadian TSX Venture stock exchange.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 4 contracts
Samples: Private Placement Subscription Agreement (Argentex Mining Corp), Private Placement Subscription Agreement (Argentex Mining Corp), Private Placement Subscription Agreement (Argentex Mining Corp)
Representations, Warranties and Covenants of the Subscriber. By executing this Subscription Agreement, the Subscriber (aon its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) The Subscriber hereby represents and represents, warrants to and covenants with to the Company Corporation (which representations, warranties and covenants shall survive acknowledges that the ClosingCorporation and its counsel are relying thereon) that:
(a) if the Subscriber is an individual, the Subscriber is of the full age of majority in the jurisdiction in which this Subscription Agreement is executed and is legally competent to execute and deliver this Subscription Agreement, to perform all of its obligations hereunder, and to undertake all actions required of the Subscriber hereunder;
(b) if the Subscriber is not an individual, the Subscriber has the requisite power, authority, legal capacity and competence to enter into execute and execute deliver this Subscription Agreement Agreement, to perform all of its obligations hereunder, and to take undertake all actions required pursuant hereto andof the Subscriber hereunder, and all necessary approvals of its directors, partners, shareholders, trustees or otherwise with respect to such matters have been given or obtained;
(c) if the Subscriber is a corporationbody corporate, it the Subscriber is duly incorporated and 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 incorporation;
(d) this Subscription Agreement on behalf of has been duly and validly authorized, executed and delivered by, and constitutes a legal, valid, binding and enforceable obligation of, the Subscriber;
(ce) if the Subscriber is acting as agent or trustee for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documents in connection with such subscription on behalf of such principal, and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of, and constitutes a legal, valid, binding and enforceable obligation of, such principal;
(f) the entering into execution, delivery and performance by the Subscriber of this Subscription Agreement and the completion of the transactions contemplated hereby do not and will not result in the a violation of any of the terms and provisions of any law law, regulation, order or ruling applicable to the Subscriber, and do not and will not constitute a breach of or default under any of the Subscriber’s constating documents (if the Subscriber is not an individual) or of any agreement, written or oral, agreement to which the Subscriber may be is a party or by which the Subscriber it is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with is, or is exempt from deemed to be purchasing the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Notes as principal for the Subscriber’s own account, not for the benefit of any other person, and for investment purposes only, only and not with a view toto the resale or distribution of all or any of the Notes; and
i. if the Subscriber is resident in one of the Northwest Exemption Jurisdictions and is purchasing Notes through a Selling Agent that is not registered as a dealer in the applicable province or territory, the Subscriber hereby acknowledges and agrees that such Selling Agent has not advised, recommended or for, resale, distribution otherwise represented to the Subscriber that the Notes are suitable with regards to the Subscriber’s:
A. investment needs and objectives;
B. financial tolerance;
C. risk tolerance and that the “Seller” as defined in the Risk Acknowledgment under Blanket Order 31-505 attached as Schedule C hereto has not provided financial services to the Subscriber and does not hold or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shareshave access to the Subscriber’s assets;
(kh) the Subscriber confirms that the Subscriber (and, if the Subscriber is not purchasing as principal, each beneficial purchaser for whom the Subscriber is acting):
i. if the Subscriber is an underwriter of, or dealer in, the common shares individual resident in an Offering Jurisdiction and is purchasing Notes as an “accredited investor” (as such term is defined in NI 45-106 and Section 73.3 of the CompanySecurities Act (Ontario)), nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber has duly completed and executed two (2) copies of the Risk Acknowledgment Form 45-106F9 attached to this Subscription Agreement as Schedule A; or ii. if the Subscriber is resident in an Offering Jurisdiction, is not acquired the Shares an Individual and is purchasing Notes as a result of, and will not itself engage in, any an “directed selling effortsaccredited investor” (as such term is defined in Regulation S under the 0000 Xxx) in the United States in respect NI 45-106 and Section 73.3 of the Shares which would include any activities undertaken for the purpose ofSecurities Act (Ontario)), or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of has duly completed and executed the Shares pursuant Accredited Investor Representation Letter attached to registration of the Shares pursuant to the 1933 Act this Subscription Agreement as Schedule B (including Appendix A thereto); and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any being used solely to purchase or hold Notes pursuant to an exemption available under NI 45-106 or Section 73.3 of the Securities and is not acquiring the Shares Act (Ontario) (as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingapplicable); and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 3 contracts
Samples: Subscription Agreement, Subscription Agreement, Subscription Agreement
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriberhereto;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ed) the Subscriber is acquiring the Securities pursuant to an exemption from the registration Units for such Subscriber's own account and/or benefit for investment and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, not as a consequence, the Subscriber will nominee and not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided with a view to the Subscriber pursuant to applicable securities legislation;distribution thereof.
(fe) the Subscriber is not acquiring the Shares Units for the account or benefit of, directly or indirectly, any U.S. Person;
(gf) the Subscriber is not a U.S. PersonPerson (as defined in Regulation S);
(hg) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ih) the sale of the Shares Units to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(i) the Subscriber is acquiring the Units for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Units in the United States or to U.S. Persons;
(j) the Subscriber is outside the United States at the time of the offer and sale of the Units and when receiving and executing this Subscription Agreement and is acquiring the Shares Units as principal for the Subscriber’s 's own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesUnits;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesUnits;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesUnits; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any public solicitation or advertisement of an offer in connection with any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingUnits; and
(on) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesUnits;
(ii) that any person will refund the purchase price of any of the SecuritiesUnits;
(iii) as to the future price or value of any of the SecuritiesUnits; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system; except that the Company’s common shares are currently approved for trading on OTC BB.
(o) The Subscriber will not engage in hedging transactions with respect to the Units unless in compliance with the 1933 Act.
Appears in 3 contracts
Samples: Private Placement Subscription Agreement (Traceguard Technologies, Inc.), Private Placement Subscription Agreement (Traceguard Technologies, Inc.), Private Placement Subscription Agreement (Traceguard Technologies, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) The 2.1 If the Subscriber is purchasing the Shares as principal for its own account, the Subscriber hereby represents represents, warrants and warrants covenants to and covenants with the Company (which representationsIssuer that it is purchasing such Shares not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Shares.
2.2 Each Subscriber hereby represents, warranties warrants and covenants shall survive to and with the Closing) Issuer that:
(a) the Subscriber has no knowledge of a "material fact" or "material changes", as those terms are defined in the Securities Act, in respect of the affairs of the Issuer that has not been generally disclosed to the public;
(b) the Subscriber and any beneficial purchaser for whom it is acting are resident in the jurisdiction set out on the execution page of this subscription
(c) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement subscription and to take all actions required pursuant hereto and, if it the Subscriber is a corporation, it is duly incorporated and 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 subscription on behalf of the Subscriber;
(cd) the entering into of this Subscription Agreement subscription and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the subscriber, and if the subscriber is a corporation or other legal entity, the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(de) the Subscriber has had duly and validly authorized, executed and delivered this Subscription Agreement subscription and except as specifically provided otherwise herein, it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationSubscriber;
(f) in connection with the Subscriber's investment in the Shares, the Subscriber has not relied upon the Issuer or the Issuer's legal counsel or advisors for investment, legal or tax advice, and has, if desired, in all cases sought the advice of the Subscriber's own personal investment advisor, legal counsel and tax advisors, and the Subscriber is not acquiring either experienced in or knowledgeable with regard to the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale affairs of the Shares to the Subscriber as contemplated in this Subscription Agreement complies Issuer or, either alone or with or its professional advisors, is exempt from the applicable securities legislation capable by reason of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in financial and business matters as to be capable in general, and investments in particular, of evaluating the merits and risks of its prospective an investment in the Shares; and (iii) has the ability it is able to bear the economic risks risk of its prospective an investment in the Shares, and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect of the Shares which would include any activities undertaken for the purpose of, or that could otherwise be reasonably be expected assumer to have the effect of, conditioning capacity to protect its own interest in connection with the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided hereininvestment;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 3 contracts
Samples: Subscription Agreement (Emps Corp), Subscription Agreement (Emps Corp), Subscription Agreement (Emps Corp)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber and any beneficial purchaser for whom it is acting are resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the delivery instructions of this Subscription;
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsSubscriber;
(e) it understands and agrees that none of the Subscriber Securities has been registered under the 1933 Act, and they may not be sold under U.S. law except as permitted in paragraph 6.1(g) below;
(f) it is purchasing the Securities for its own account or for an account with respect to which it exercises sole investment discretion, and that it or such account is an accredited investor as that term is defined in Rule 501 under the 1933 Act (an "Institutional Accredited Investor") acquiring the Securities for investment purposes and not for distribution;
(g) it understands and agrees (i) that the Securities are being offered only in a transaction not involving any public offering within the meaning of the 1933 Act, and under Rule 144 under the 1933 Act ("Rule 144") (ii) that (A) if within the 40 day period after the date of original issuance of the Securities, or if within three months after it ceases to be an affiliate (within the meaning of Rule 144) of the Company, it decides to resell, pledge or otherwise transfer any of the Shares on which the legend as set forth below appears, such Shares may be resold, pledged or transferred only (1) to the Company, (2) so long as the Shares are eligible for resale pursuant to Rule 144A under the 1933 Act ("Rule 144A"), to a person whom the seller reasonably believes is a qualified institutional investor buyer ("QIB") as that term is defined in Rule 144A(a)(1) that purchases for its own account or for the account of a QIB to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A (as indicated by the box checked by the transferor on the certificate of transfer on the reverse of the Shares), (3) in an offshore transaction in accordance with Regulation S (as indicated by the box checked by the transferor on the certificate of transfer on the reverse of the Shares), (4) to an Institutional Accredited Investor (as indicated by the box checked by the transferor on the certificate of transfer on the reverse of the Shares) who has certified to the Company that such transferee is an Institutional Accredited Investor and is acquiring such security for investment purposes and not for distribution, (5) pursuant to an exemption from registration provided by Rule 144 (if applicable) under the 1933 Act, (6) in a transaction that does not require registration under the 1933 Act or any applicable U.S. state laws and prospectus requirements regulations governing the offer and sale of securities, and it has prior to such sale furnished to the Company an opinion of counsel reasonably satisfactory to the Company, or (7) pursuant to an effective registration statement under the 1933 Act, in each case in accordance with any applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most laws of any state of the civil remedies available under applicable securities legislation United States, (B) the purchaser will, and each subsequent holder is required to, notify any purchaser of the Subscriber Shares from it of the resale restrictions referred to in clause (A) above, if then applicable, and (C) with respect to any transfer of the Shares by an Institutional Accredited Investor, such holder will not receive information that would otherwise be required to be provided deliver to the Subscriber pursuant Company such certificates and other information as it may reasonably require to applicable securities legislation;
(f) confirm that the Subscriber is not acquiring transfer by it complies with the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Personrestrictions set forth in this paragraph 6.1(g);
(h) it understands and agrees that the Subscriber is resident notification requirement referred to in paragraph 6.1(g) above will be satisfied by virtue of the jurisdiction fact that the legend set out under the heading “Name and Address of Subscriber” below will be placed on the signature page of this Subscription Agreement;Shares unless otherwise agreed by the Company. "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED TO A U.S. PERSON EXCEPT AFTER THE EXPIRY OF A 40 DAY DISTRIBUTION COMPLIANCE PERIOD AS PRESCRIBED IN REGULATION S."
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber it (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mj) the Subscriber acknowledges it understands and agrees that the Subscriber has legend referred to in paragraph 6.1
(i) above shall not acquired be removed from any Shares purchased by it pursuant to this Subscription unless there is delivered to the Shares as a result ofCompany such satisfactory evidence, and will not itself engage in, any “directed selling efforts” (as defined which may include an opinion of counsel licensed to practice law in Regulation S under one of the 0000 Xxx) in states of the United States in respect of America, as may be reasonably required by 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 the Shares; provided, howeverCompany, that such Shares are not "restricted" within the Subscriber may sell or otherwise dispose meaning of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided hereinRule 144;
(nk) if it is acquiring the Securities as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgments, representations and agreements on behalf of such account;
(l) it understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgments, representations and agreements contained in sections 5 and 6 hereof and agrees that if any of such acknowledgments, representations and agreements are no longer accurate or have been breached, it shall promptly notify the Company;
(m) the Subscriber is not aware of any advertisement of any of the Securities;
(n) in purchasing the Securities the Subscriber has complied with all securities laws of its jurisdiction of residence and warrants that the sale of the Securities by the Company is not acquiring in full compliance with such laws, and the Shares as a result Subscriber will make all filings necessary in such jurisdiction to ensure the Company complies with securities laws of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingsuch jurisdiction; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;; or
(iii) as to the future price or value of any of the Securities; or.
(iv) that any 6.2 In this Subscription, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S and for the purpose of the Securities will be listed and posted for trading on Subscription includes any stock exchange or automated dealer quotation system or that application has been made to list and post any of person in the Securities of the Company on any stock exchange or automated dealer quotation systemUnited States.
Appears in 3 contracts
Samples: Financing Agreement (Atlantic Security Inc), Financing Agreement (Atlantic Security Inc), Financing Agreement (Atlantic Security Inc)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ed) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(fe) the Subscriber is not acquiring the Shares Units for the account or benefit of, directly or indirectly, any U.S. Person;
(gf) the Subscriber is not a U.S. Person;
(hg) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ih) the sale of the Shares Units to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(ji) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Units as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesUnits;
(kj) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesUnits;
(lk) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesUnits; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(ml) the Subscriber acknowledges that the Subscriber has not acquired the Shares Units as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 1000 Xxx) in the United States in respect of the Shares Units 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 the Shares or Warrant Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares or Warrant Shares pursuant to registration of the Shares or Warrant Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nm) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Units as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(on) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 3 contracts
Samples: Private Placement Subscription Agreement (Bonanza Gold Corp.), Private Placement Subscription Agreement (Bonanza Gold Corp.), Private Placement Subscription Agreement (Liberty Gold Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is not acquiring the Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(c) the Subscriber is resident in the jurisdiction set out on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the outstanding documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ef) the Subscriber is acquiring the Securities pursuant to an exemption from the registration as principal for its own account for investment purposes only and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account of any other person and not for distribution, assignment or benefit ofresale to others, directly and no other person has a direct or indirectlyindirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any U.S. Personother person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(h) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Form 10-KSB, and the Company’s Form 10-Q, Form 8-K and any other periodic filings filed from time to time with the Commission;
(i) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares Common Stock of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the SharesSecurities;
(lo) the Subscriber (i) is able to fend for him/her/itself understands and agrees that none of the Securities have been or will be registered under the Securities Act or under any state securities or “blue sky” laws of any state of the United States and, unless so registered, may not be offered or sold in the Subscription; United States or directly or indirectly to U.S. Persons, except in accordance with the provisions of Regulation S (ii) has such knowledge “Regulation “S” promulgated under the Securities Act, pursuant to an effective registration statement under the Securities Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment each case only in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentaccordance with applicable state securities laws;
(mp) the Subscriber acknowledges understands and agrees that offers and sales of any of the Securities prior to the expiration of a period of six months after the date of original issuance of the Securities (the six month period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the Securities Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the Securities Act or an exemption therefrom and in each case only in accordance with applicable state securities laws;
(q) the Subscriber has not acquired the Shares Securities as a result of, and it covenants that it will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 XxxS) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Securities Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nr) the Subscriber agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the Securities Act and in each case only in accordance with applicable state securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act;
(t) the Subscriber (i) is able to fend for itself in the Subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Securities and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(u) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ov) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently the Company’s Common Stock is quoted on the Over-The-Counter Bulletin Board (“OTCBB”) operated by FINRA.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 3 contracts
Samples: Termination Agreement (Qnective, Inc.), Subscription Agreement (Qnective, Inc.), Subscription Agreement (Qnective, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is resident in the jurisdiction set forth on page 2 underneath the Subscriber’s name and signature;
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(c) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(d) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in anyway whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(e) all information contained in the Questionnaires are complete and accurate and may be relied upon by the Company and the Subscriber will notify the Company immediately of any material change in any such information occurring prior to the closing of the purchase of the Securities;
(f) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dg) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsSubscriber;
(eh) the Subscriber is acquiring it understands and agrees that none of the Securities pursuant to an exemption from have been registered under the registration and prospectus requirements of applicable 1933 Act or any state securities legislation in all jurisdictions relevant to this Subscriptionlaws, and, as a consequenceunless so registered, none may be offered or sold in the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit ofUnited States or, directly or indirectly, any to U.S. Person;
Persons (gas defined herein) except pursuant to an exemption from, or in a transaction not subject to, the Subscriber is not a U.S. Person;
(h) Registration Requirements of the Subscriber is resident 1933 Act and in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreementeach case only in accordance with state securities laws;
(i) it is purchasing the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal Securities for the Subscriber’s its own account, account for investment purposes only, only and not with a view tofor the account of any other person and not for distribution, assignment or for, resale, distribution or fractionalisation thereof, in whole or in partresale to others, and no other person has a direct or indirect beneficial interest is such Securities, and the Subscriber has not subdivided his interest in such Sharesthe Securities with any other person;
(kj) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) it is able to fend for him/her/itself in the Subscription; (ii) has such knowledge Subscription and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mk) if it is acquiring the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result offiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and will not itself engage init has full power to make the foregoing acknowledgments, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect representations and agreements on behalf 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided hereinaccount;
(nl) it understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgments, representations and agreements contained in sections 4 and 6 hereof and agrees that if any of such acknowledgments, representations and agreements are no longer accurate or have been breached, it shall promptly notify the Company;
(m) the Subscriber is not aware of any advertisement of any of acquiring the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio radio, or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(on) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S and for the purpose of the Subscription includes any person in the United States.
Appears in 3 contracts
Samples: Private Placement Subscription Agreement (Mantra Venture Group Ltd.), Private Placement Subscription Agreement (Mantra Venture Group Ltd.), Private Placement Subscription Agreement (Mantra Venture Group Ltd.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is not acquiring the Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(c) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. PersonSubscriber;
(g) the Subscriber is acquiring the Securities as principal for its own account for investment purposes only and not for the account of any other person and not for distribution, assignment or resale to others, and no other person has a U.S. Persondirect or indirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any other person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(i) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Form 10-KSB and any other filings filed with the SEC;
(j) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(k) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(n) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(o) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities;
(lp) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Securities;
(q) the Subscriber (i) is able to fend for him/her/itself understands and agrees that none of the Securities have been or will, except as set forth in this Agreement, be registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the Subscription; United States or, directly or indirectly, to U.S. Persons, as that term is defined in Regulation S under the 1933 Act (ii) has such knowledge “Regulation S”), except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment each case only in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentaccordance with applicable state securities laws;
(mr) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of a period of one year after the date of original issuance of the Securities (the one year period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state securities laws;
(s) the Subscriber acknowledges that the Subscriber it has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nt) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(u) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(v) the Subscriber (i) is able to fend for itself in the Subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Securities and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(w) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ox) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently the Company’s common shares are quoted on the over-the-counter market operated by the NASD’s Over-The-Counter Bulletin Board.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 3 contracts
Samples: Subscription Agreement (Skins Inc.), Subscription Agreement (Logicom Inc.), Subscription Agreement (California Oil & Gas Corp)
Representations, Warranties and Covenants of the Subscriber. The Subscriber hereby represents, warrants and covenants to the Company as follows:
(a) The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if If the Subscriber is a corporation, it the Subscriber is duly incorporated incorporated, validly existing and validly subsisting in good standing under the laws of its jurisdiction of incorporation organization, with full power and all necessary approvals by authority (corporate and other) to perform its directorsobligations under this Agreement. If the Subscriber is a trust, shareholders the Trustee has been duly appointed as Trustee of the Subscriber with full power and others have been obtained authority to authorize execution act on behalf of the Subscriber and to perform the obligations of the Subscriber under this Agreement. If the Subscriber is a limited partnership, the Subscriber is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with full power and authority to perform its obligations under this Agreement. If the Subscriber is an individual, the Subscriber has the full power and authority to perform its obligations under this Agreement.
(b) The execution, delivery and performance of this Subscription Agreement on behalf by the Subscriber and the consummation by the Subscriber of the transactions contemplated hereby have been duly authorized by all necessary corporate or other action of the Subscriber;; and this Agreement, when duly executed and delivered by the Subscriber and accepted by the Company, will constitute a valid and legally binding instrument, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The Subscriber is not insolvent and has sufficient cash funds on hand to purchase the entering into of Placement Shares on the terms and conditions contained in this Subscription Agreement and has no reason to believe that it will not have such funds on or about the Funding Date. Upon a reasonable request by the Company, the Subscriber will provide the Company with evidence or substantiation that such Subscriber has the financial means to satisfy its financial obligations under this Agreement and the foregoing evidence and substantiation shall be a true and accurate representation of such means.
(d) Except as may be disclosed on Annex B to this Agreement, no state, federal or foreign regulatory approvals, permits, licenses or consents or other contractual or legal obligations are required in order for the Subscriber to enter into this Agreement or to purchase the Placement Shares. Based upon the advice of Subscriber's counsel, Subscriber has no reason to believe that the regulatory approvals listed on Annex B, if any, will not be received within usual and customary time frames and without the imposition of any terms or conditions that would have an adverse effect on the Company's operations or strategic plan.
(e) The execution and delivery of this Agreement, the consummation by the Subscriber of the transactions herein contemplated hereby and the compliance by the Subscriber with the terms hereof do not and will not conflict with, or result in the a breach or violation of any of the terms and or provisions of, or constitute a default under, the constituent documents of any law applicable to the Subscriber or any indenture, mortgage, deed of any agreementtrust, written loan agreement or oral, other agreement or instrument to which the Subscriber may be is a party or by which any of the Subscriber's properties or assets are bound, or any applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Subscriber or any of the Subscriber's properties or assets; and no consent, approval, authorization, order, registration or qualification of or with any such government, governmental instrumentality or court, domestic or foreign, is required for the valid authorization, execution, delivery and performance by the Subscriber of this Agreement or the consummation by the Subscriber of the transactions contemplated by this Agreement except as may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;disclosed on Annex B.
(f) Except as may be disclosed in the Memorandum, the Subscriber is has not acquiring entered into any contracts, arrangements, understandings or relationships (legal or otherwise) with any other person or persons with respect to the Shares for transactions contemplated by this Agreement or any securities of the account Company, including but not limited to transfer or benefit ofvoting of any of the securities, directly finder's fees, joint ventures, loan or indirectlyoption arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies; and the Subscriber does not own any U.S. Person;securities of the Company which are pledged or otherwise subject to a contingency the occurrence of which would give another person voting power or investment power over such securities.
(g) The Subscriber has been advised and understands that the Subscriber Placement Shares have not been registered under the Securities Act in reliance upon the exemption from such registration provided in Section 4(2) thereof and that the Placement Shares have not been registered under the securities laws of any state in reliance on exemptions therefrom and, therefore, the Placement Shares may not be resold unless registered under applicable state securities laws or an exemption from registration is not a U.S. Person;available. The Company is and will be under no obligation to register the Placement Shares under the Securities Act except to the extent provided in the Registration Rights Agreement (as defined hereinafter), when executed by the Company.
(h) The Subscriber acknowledges receipt of, and has had a reasonable opportunity to review, the Memorandum and understands that no person has been authorized to provide any additional information regarding the Company, the Target Company or the Proposed Acquisition (other than information which otherwise is publicly available) or make any representations that were not contained in such Memorandum, and the Subscriber is resident has not relied on any such other information or representations in making a decision to purchase any of the Placement Shares. The Subscriber understands that an investment in the jurisdiction Placement Shares involves a high degree or risk, including the risks set out forth under the heading “Name and Address of Subscriber” on "RISK FACTORS" in the signature page of this Subscription Agreement;Memorandum.
(i) the sale of the Shares to the The Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective an investment in the Placement Shares; and (iii) has the ability , is able to bear the economic risks risk of its prospective an investment and can in the Placement Shares, including at the date hereof, the ability to afford the a complete loss of such the investment;
(m) the Subscriber acknowledges that the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any “directed selling efforts” is (i) a sophisticated institutional or corporate investor as well as an "accredited investor" as defined in Regulation S Rule 501(a) under the 0000 XxxSecurities Act; or (ii) a sophisticated individual investor as well as an "accredited investor" as defined in Rule 501(a) under the Securities Act. The Subscriber agrees to provide promptly such additional information as may be reasonably required by the Company for compliance with the securities laws of the state in which the Subscriber is located.
(j) The Subscriber intends to purchase the Placement Shares offered in the Memorandum for the account of the Subscriber and its affiliates and not, in whole or in part, for the account of any other person. The Subscriber represents and warrants to, and covenants and agrees with, the Company that the Placement Shares to be acquired by it hereunder are being acquired for its own account for investment and with no intention of distributing or reselling such Placement Shares or any part thereof or interest therein in any transaction which would be in violation of the securities laws of the United States in respect of the Shares which would include America or any activities undertaken for the purpose ofstate.
(k) The Subscriber has been advised that, or that could reasonably be expected prior to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to any registration of the Placement Shares pursuant to the 1933 Act provisions of the Registration Rights Agreement, any and all certificates representing the Placement Shares and any applicable state and federal all certificates issued in replacement thereof or in exchange therefor shall bear the following legend or one substantially similar thereto: THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE IN RELIANCE ON EXEMPTIONS THEREFROM AND, THEREFORE, MAY NOT BE RESOLD UNLESS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE (INCLUDING, WITHOUT LIMITATION, THE EXEMPTION PROVIDED UNDER RULE 144A OF THE ACT). In addition, certificates representing the Placement Shares acquired by Subscribers located in certain states will bear additional legends as required by the securities laws or under an exemption from such registration requirements and as otherwise provided herein;of those states.
(nl) the The Subscriber is will not aware of any advertisement of sell or otherwise transfer any of the Securities Placement Shares, except in compliance with the provisions of the applicable securities laws and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published stated in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have legend. The Subscriber has been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
advised that (i) that any person will resell there are significant restrictions on the transfer or repurchase any of the Securities;
Placement Shares, (ii) that any person will refund there is no active market for the purchase price of any of the Securities;
Common Stock, (iii) as no trading market for the Placement Shares is likely to be available in the future price or value of any of the Securities; or
foreseeable future, and (iv) that any of an investment in the Securities will Placement Shares may be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation systemextremely illiquid.
Appears in 3 contracts
Samples: Subscription Agreement (Commerce Security Bancorp Inc), Subscription Agreement (Commerce Security Bancorp Inc), Subscription Agreement (Commerce Security Bancorp Inc)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) ), and acknowledges that the Company is relying thereon, that:
(a) the Subscriber is not a U.S. Person as that term is defined in Regulation S;
(b) the Subscriber is not acquiring the Note for the account or benefit of, directly or indirectly, any U.S. Person as that term is defined in Regulation S;
(c) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and upon acceptance thereof by the Company it will constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(eg) the Subscriber is acquiring the Securities pursuant to an exemption from the registration as principal for its own account for investment purposes only and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account of any other person and not for distribution, assignment or benefit ofresale to others, directly and no other person has a direct or indirectlyindirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any U.S. Person;
(g) the Subscriber is not a U.S. Personother person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Note as principal for the Subscriber’s 's own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(i) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading "Risk Factors" appearing in the Company's Forms 10-K, 10-Q, 8-K and any other filings filed with the SEC;
(j) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Securities and the Company;
(k) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(n) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(o) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company's Shares, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the Shares;
(lp) the Subscriber is not an underwriter of, or dealer in, the Company's Shares, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the Securities;
(q) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of restricted period after the date of original issuance of the Securities (the six month period hereinafter referred to as the "DISTRIBUTION COMPLIANCE PERIOD") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state securities laws;
(r) the Subscriber agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(s) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) 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 SharesSecurities and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mt) the Subscriber acknowledges that will indemnify the Subscriber has not acquired the Shares as a result ofCompany against, and will not itself engage inhold the Company and, where applicable, its respective directors, officers, employees, agents, advisors and shareholders harmless from, any “directed selling efforts” and all loss, liability, claim, damage and expense whatsoever (as defined including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in Regulation S under the 0000 Xxxinvestigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) in the United States in respect arising out of or based upon any representation or warranty of the Shares which would include Subscriber contained herein or in 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 the Shares; provided, however, that document furnished by the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and Company in connection herewith being untrue in any applicable state and federal securities laws material respect or under an exemption from such registration requirements and as otherwise provided hereinany breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(nu) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ov) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently the Company's common shares are quoted on the over-the-counter market operated by the Over-The-Counter Bulletin Board operated by FINRA.
6.2 In this Subscription Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 3 contracts
Samples: Subscription Agreement (Norstra Energy Inc), Subscription Agreement (Norstra Energy Inc), Subscription Agreement (Global Stevia Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall will survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) the Subscriber in accordance with its termsis not a U.S. Person;
(e) the Subscriber is not acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(hf) the Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(ig) the sale of the Shares Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(jh) the Subscriber is acquiring the Securities for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Securities in the United States or to U.S. Persons;
(i) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own accountaccount (except for the circumstances outlined in paragraph 6.1(l)), for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesSecurities;
(kj) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities;
(lk) the Subscriber Subscriber: (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(l) if the Subscriber is acquiring the Securities as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber 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
(ii) the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an "Accredited Investor", as the term is defined in Regulation D under the 1933 Act;
(m) the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result of, and will not itself engage in, any “"directed selling efforts” " (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; andSecurities;
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system; and
(p) the Subscriber:
(i) is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the Subscriber is resident (the "International Jurisdiction") which would apply to the acquisition of the Units,
(ii) is purchasing the Units pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Subscriber is permitted to purchase the Units under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions,
(iii) acknowledges that the applicable securities laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of any of the Securities, and
(iv) represents and warrants that the acquisition of the Units by the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or
B. any continuous disclosure reporting obligation of the Company in the International Jurisdiction, and the Subscriber will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Company, acting reasonably.
Appears in 3 contracts
Samples: Subscription Agreement (Crown Oil & Gas Inc.), Subscription Agreement (Crown Oil & Gas Inc.), Subscription Agreement (Crown Oil & Gas Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
: the Subscriber is not a U.S. Person; the Subscriber is not acquiring the Securities for the account or benefit of, directly or indirectly, any U.S. Person; the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber; the Subscriber is purchasing the Securities as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons; the Subscriber is outside the United States when receiving and executing this Subscription Agreement; the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Securities; the Subscriber understands and agrees that none of the Securities have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws; the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of a period of one year after the date of original issuance of the Securities (bthe one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom; the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act; the Subscriber understands and agrees that the Company will refuse to register any transfer of the Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act; the Subscriber acknowledges that the Subscriber has not acquired the Securities as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Securities 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 Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Securities pursuant to registration of any of the Securities pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment; the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of the Subscriber's legal and financial advisors and agrees that the Company will not be responsible in anyway whatsoever for the Subscriber's decision to invest in the Securities and the Company; the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time; it (i) is able to fend for itself in the Subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Securities and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment; the Subscriber recognizes that the purchase of Securities involves a high degree of risk in that the Company does not have any commercial operations or other business assets and may require substantial funds in addition to the proceeds of this Offering; the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company; the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(c) ; the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) ; the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber ; if it is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequencefiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation foregoing acknowledgments, representations and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” agreements on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss behalf of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Sharesaccount; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) and no person has made to the Subscriber any written or oral representations:
(i) : that any person will resell or repurchase any of the Securities;
(ii) ; that any person will refund the purchase price of any of the Securities;
(iii) ; or as to the future price or value of any of the Securities. In this Subscription Agreement, the term "U.S. Person" shall mean: any natural person resident in the United States; or
(iv) that any partnership or corporation organized or incorporated under the laws of the Securities will be listed United States; any estate of which any executor or administrator is a U.S. person; any trust of which any trustee is a U.S. person; any agency or branch of a foreign entity located in the United States; any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person; any discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated, or (if an individual) resident in the United States; and posted any partnership or corporation if: organized or incorporated under the laws of any foreign jurisdiction; and formed by a U.S. person principally for trading on any stock exchange the purpose of investing in securities not registered under the 1933 Act, unless it is organized or automated dealer quotation system or incorporated, and owned, by accredited investors, as that application has been made to list and post any term is defined in Regulation D of the Securities of the Company on any stock exchange 1933 Act, who are not natural persons, estates or automated dealer quotation systemtrusts.
Appears in 3 contracts
Samples: Private Placement Subscription Agreement (Pluristem Life Systems Inc), Private Placement Subscription Agreement (True Religion Apparel Inc), Private Placement Subscription Agreement (True Religion Apparel Inc)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s 's own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx1933 Act) in the United States in respect of the Shares which would xxxxx xould 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 3 contracts
Samples: Private Placement Subscription Agreement (Cindisue Mining Corp), Private Placement Subscription Agreement (Cindisue Mining Corp), Private Placement Subscription Agreement (Cindisue Mining Corp)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ed) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(fe) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(gf) the Subscriber is not a U.S. Person;
(hg) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ih) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(ji) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(kj) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(lk) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(ml) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nm) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(on) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Polar Petroleum Corp.), Private Placement Subscription Agreement (Polar Petroleum Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person and the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(b) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Agreement;
(c) it has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cd) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if the Subscriber is a corporate entity, the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(de) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationSubscriber;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Personhas received and carefully read this Agreement;
(g) the Subscriber is acquiring the Shares as principal for investment only and not with a U.S. Personview to resale or distribution;
(h) the Subscriber is resident aware that an investment in the jurisdiction set out under Company is speculative and involves certain risks, including the heading “Name and Address possible loss of Subscriber” on the signature page of this Subscription Agreemententire investment;
(i) the sale Subscriber has made an independent examination and investigation of an investment in the Shares to and the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from Company and has depended on the applicable securities legislation advice of the jurisdiction of residence of the Subscriberits legal and financial advisors;
(j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(k) the Subscriber (i) is able to fend for itself; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) can afford the complete loss of such investment;
(l) the Subscriber is outside the United States when receiving and executing this Subscription Agreement Agreement;
(m) the Subscriber understands and is acquiring agrees that offers and sales of any of the Shares prior to the expiration of the period specified in Regulation S (such period hereinafter referred to as principal for the Subscriber’s own account“Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, for investment purposes onlypursuant to the registration provisions of the 1933 Act or an exemption therefrom, and not that all offers and sales after the Distribution Compliance Period shall be made only in compliance with a view to, the registration provisions of the 1933 Act or for, resale, distribution or fractionalisation thereof, an exemption therefrom and in whole or each case only in partaccordance with applicable state and provincial securities laws;
(n) all information contained in the Questionnaire is complete and accurate and may be relied upon by the Company, and no other person has a direct or indirect beneficial interest the Subscriber will notify the Company immediately of any material change in any such information occurring prior to the closing of the issuance of the Shares;
(ko) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(np) the Subscriber is not aware of any advertisement of any of the Securities Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(oq) others will rely upon the truth and accuracy of the representations and warranties contained in this Section 6.1 and agrees that if such representations and warranties are no longer accurate or have been breached, the Subscriber shall immediately notify the Company;
(r) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system; and
(s) the Subscriber has provided to the Company, along with an executed copy of this Agreement:
(i) fully completed and executed Questionnaire in the form attached hereto as Exhibit A, and
(ii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber’s qualification as a qualified investor.
6.2 In this Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for the purpose of the Agreement includes any person in the United States.
Appears in 2 contracts
Samples: Debt Conversion Subscription Agreement (Nexaira Wireless Inc.), Debt Conversion Subscription Agreement (Nexaira Wireless Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber By execution of this Subscription Agreement, the Subscriber, on its own behalf and, if applicable, on behalf of others for whom it is acting hereunder, hereby represents and warrants to to, and covenants with with, the Company (which as follows and acknowledges that the Company are relying on such representations, warranties and covenants shall survive in connection with the Closingtransactions contemplated herein:
(a) that:The matters set forth by the Subscriber on pages 2 and 3 of this Subscription Agreement are true and correct as of the date of execution of this Subscription Agreement and will be true and correct as of the Closing Time.
(b) The Subscriber is a resident in the jurisdiction set out on page 2 of this Subscription Agreement. Such address was not created and is not used solely for the purpose of acquiring the Common Shares and the Subscriber and any beneficial purchaser was solicited to purchase and executed this Subscription Agreement in such jurisdiction.
(c) The Subscriber has properly completed, executed and delivered to the legal capacity and competence Company within the applicable time periods the certificate(s) set forth in Schedule “C” to enter into and execute this Subscription Agreement and the information contained therein is true and correct.
(d) The representations, warranties and covenants contained in Schedule “A” and in the other applicable Schedules to take all actions required pursuant hereto andthis Subscription Agreement are true and correct as of the date of execution of this Subscription Agreement and will be true and correct as of the Closing Time.
(e) The execution and delivery of this Subscription Agreement, if the performance and compliance with the terms hereof, the subscription for Common Shares and the completion of the transactions described herein by the Subscriber will not result in any material breach of, or be in conflict with or constitute a material default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a material default under any term or provision of the constating documents, by-laws or resolutions of the Subscriber, the Securities Laws or any other laws applicable to the Subscriber, any agreement to which the Subscriber is a party, or any judgment, decree, order, statute, rule or regulation applicable to the Subscriber.
(f) The undersigned represents and warrants that the undersigned is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control (OFAC) or in any Executive Order issued by the President of the United States and administered by OFAC, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). The undersigned agrees to provide the Company or law enforcement agencies, promptly upon request, such records as required by applicable law. If the undersigned is a financial institution that is subject to the Bank Secrecy Act, as amended (31 U.S.C. Section 5311 et seq.) and its implementing regulations (collectively, the “Bank Secrecy Act”), the undersigned represents that the undersigned maintains policies and procedures reasonably designed to comply with applicable obligations under the Bank Secrecy Act. The undersigned further represents and warrants that it maintains policies and procedures reasonably designated to ensure that the funds held by the undersigned and used to purchase the Shares were legally derived. The undersigned acknowledges that if, following the investment in the Shares by the undersigned, the Company reasonably believes that the undersigned is a Prohibited Investor or is otherwise engaged in illegal activity or unreasonably refuses to provide promptly information that the Company reasonably requests, the Company has the right or may be obligated to prohibit additional investments, segregate the assets constituting, and/or withholding or suspend distributions to the undersigned in respect of, the investment in accordance with applicable regulations or immediately require the undersigned to transfer the Shares. The undersigned further acknowledges that the undersigned will not have any claim against the Company or any of its affiliates or agents for any form of damages as a result of any of the foregoing actions.
(g) The Subscriber is subscribing for the Common Shares for his, her or its own account, as principal (within the meaning of applicable Securities Laws) and not with a view to the resale or distribution of all or any of the Securities or if it is not subscribing as principal, it acknowledges that the Company may be required by law to disclose (and if required by law the Subscriber agrees to disclose) to certain regulatory authorities the identity of each beneficial purchaser of the Common Shares for whom it is acting.
(h) In the case of a subscription for the Common Shares by the Subscriber acting as trustee or agent (including, for greater certainty, a portfolio manager or comparable adviser) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such subscription on behalf of each such beneficial purchaser, each of whom is subscribing as principal for its own account, not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Securities, and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of and constitutes a legal, valid, enforceable and binding agreement of, such principal, and the Subscriber acknowledges that the Company may be required by law to disclose (and if required by law the Subscriber agrees to disclose) the identity of each beneficial purchaser for whom the Subscriber is acting.
(i) The Subscriber is not an Insider or “affiliate” of the Company (as such term is defined under Securities Laws).
(j) In the case of a subscription for the Common Shares by the Subscriber acting as principal, this Subscription Agreement has been duly authorized, executed and delivered by, and constitutes a legal, valid and binding agreement of, the Subscriber. This Subscription Agreement is enforceable in accordance with its terms against the Subscriber and any beneficial purchasers on whose behalf the Subscriber is acting.
(k) If the Subscriber is:
(i) a corporation, it the Subscriber is duly incorporated and is validly subsisting under the laws of its jurisdiction of incorporation and has all requisite legal and corporate power and authority to execute and deliver this Subscription Agreement, to subscribe for the Common Shares as contemplated herein and to carry out and perform its covenants and obligations hereunder;
(ii) a partnership, syndicate or other form of unincorporated organization, the Subscriber has the necessary legal capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its covenants and obligations hereunder and has obtained all necessary approvals by its directorsin respect thereof; or
(iii) an individual, shareholders the Subscriber is of the full age of majority and others have been obtained is legally competent to authorize execution execute and performance of deliver this Subscription Agreement and to observe and perform his or her covenants and obligations hereunder.
(l) To the best of the Subscriber’s knowledge, there is no person acting or purporting to act in connection with the transactions contemplated herein who is entitled to any brokerage or finder’s fee.
(m) If required by applicable Securities Laws or the Company, the Subscriber will make reasonable efforts to execute, deliver and file or assist the Company in filing such reports, undertakings and other documents with respect to the issue of the Common Shares as may be required by any securities commission, stock exchange or other regulatory authority.
(n) The Subscriber, and each beneficial purchaser for whom it is acting hereunder, have been advised to consult their own legal advisors with respect to (i) the suitability of the Common Shares as an investment for the Subscriber and has not relied upon any statements made by or purporting to have been made on behalf of the Subscriber;Company in deciding to subscribe for Common Shares hereunder and (ii) trading in any of the Securities with respect to the resale restrictions imposed by the Securities Laws of the jurisdiction in which the Subscriber resides, other applicable Securities Laws, and the policies of the TSX and NASDAQ. Subject to the registration rights described in Schedule “D”, the Subscriber acknowledges that no representation has been made respecting the applicable hold periods imposed by the Securities Laws or other resale restrictions applicable to such Securities which restrict the ability of the Subscriber (or others for whom it is contracting hereunder) to resell such Securities, that the Subscriber (or others for whom it is contracting hereunder) is solely responsible to find out what these restrictions are and the Subscriber is solely responsible (and the Company is not in any way responsible) for compliance with applicable resale restrictions and the Subscriber is aware that it (or beneficial purchasers for whom it is contracting hereunder) may not be able to resell such Securities except in accordance with limited exemptions under the Securities Laws.
(co) The Subscriber has not received nor been provided with, has not requested and does not have any need to receive a prospectus or offering memorandum, within the meaning of the Securities Laws, or any sales or advertising literature in connection with the Offering, and the Subscriber’s decision to subscribe for the Common Shares was based upon the Company’s publicly available documents included in the Xxxxx database administered by the SEC and the SEDAR database administered under the direction of the Canadian Securities Administration.
(p) Other than information provided to Subscriber in meetings or calls organized with representatives of the Company (summaries of which are to be filed by the Company on or before Closing, the Subscriber (and, if applicable, others for whom it is contracting hereunder), in entering into of this Agreement, has relied solely upon publicly available information relating to the Company (including that information in the documents listed in Schedule “E”), this Subscription Agreement and the transactions contemplated hereby do not result in the violation of upon any of the terms and provisions of verbal or written representation as to any law applicable to the Subscriber fact or of any agreement, written otherwise made by or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares behalf of the Company, nor is the Subscriber participatingor any employee, pursuant to a contractual agreement agent or otherwise, in the distribution of the Shares;affiliate thereof or any other person associated therewith.
(lq) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no No person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) other than pursuant to the terms of the Securities Purchase Agreement, that any person will refund the purchase price of any of the Securities;Subscription Amount; or
(iii) as to the future price or value of any of the Securities; or.
(r) The subscription for the Common Shares has not been made through or as a result of, and the offer and sale of the Common Shares is not being accompanied by any advertisement, including without limitation in printed public media, radio, television or telecommunications, including electronic display, or as part of a general solicitation.
(s) The Subscriber confirms that the Subscriber:
(i) has such knowledge in financial and business affairs as to be capable of evaluating the merits and risks of its investment in the Common Shares;
(ii) is capable of assessing the proposed investment in the Common Shares as a result of the Subscriber’s own experience or as a result of advice received from a person registered under applicable securities legislation;
(iii) is aware of the characteristics of the Common Shares and the risks relating to an investment therein, including, without limitation, those risks set out in the Company’s publicly available information including that set out in Schedule “E” hereto;
(iv) that is able to bear the economic risk of loss of its investment in the Common Shares;
(v) is an accredited investor as such term is defined in Regulation D under the U.S. Securities Act;
(vi) the Subscriber is not a resident of any of the Securities will be listed and posted for provinces or territories of Canada; and
(vii) the Subscriber has no intention of trading on any stock exchange or automated dealer quotation system or that application has been made to list and post in the Common Shares in any of the Securities provinces or territories of Canada during the period that commences with the issuance of the Company on any stock exchange or automated dealer quotation systemCommon Shares until June 24, 2011.
(t) The Subscriber understands that it is purchasing the Common Shares directly from the Company.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Swisher Hygiene Inc.), Securities Purchase Agreement (Swisher Hygiene Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber it has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) the Subscriber in accordance with its termshas received and carefully read this Subscription Agreement;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(f) the Subscriber:
(i) is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the Subscriber is resident (the "International Jurisdiction") which would apply to the acquisition of the Shares,
(ii) is purchasing the Shares pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Subscriber is permitted to purchase the Shares under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions,
(iii) acknowledges that the applicable securities laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of any of the Shares, and
(iv) represents and warrants that the acquisition of the Shares by the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or
B. any continuous disclosure reporting obligation of the Company in the International Jurisdiction, and
(v) the Subscriber will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Company, acting reasonably;
(g) the Subscriber is acquiring the Shares as principal for investment only and not with a view to resale or distribution;
(h) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the sale Subscriber has made an independent examination and investigation of an investment in the Shares to and the Subscriber as contemplated Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of any way whatsoever for the Subscriber's decision to invest in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is outside able to bear the United States when receiving and executing this Subscription Agreement and is acquiring economic risks of an investment in the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesan indefinite period of time;
(k) the Subscriber is not an underwriter ofunderstands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and the Questionnaires and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or dealer inhave been breached, the common shares of Subscriber shall promptly notify the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges understands and agrees that the Subscriber has not acquired none of the Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S have been registered under the 0000 Xxx) 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in respect accordance with the provisions of Regulation S, pursuant to an effective registration statement under the Shares which would include any activities undertaken for the purpose of1933 Act, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Shares pursuant to the 1933 Act and any in each case only in accordance with applicable state and federal provincial securities laws or under an exemption from such registration requirements and as otherwise provided hereinlaws;
(n) by completing the Questionnaires, the Subscriber is representing and warranting that it is an "accredited investor" as that term is defined in Regulation D of the 1933 Act and NI 45-106;
(o) all information contained in the Questionnaires is complete and accurate and may be relied upon by the Company, and the Subscriber will notify the Company immediately of any material change in any such information occurring prior to the closing of the purchase of the Shares;
(p) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(r) the Subscriber is not aware of any advertisement of any of the Securities Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(os) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTCBB; and
(t) the Subscriber acknowledges and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Subscription Agreement:
(i) a fully completed and executed Questionnaire in the form attached hereto as Exhibits A and B, and
(ii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as a qualified investor.
6.2 In this Subscription Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for the purpose of the Subscription Agreement includes any person in the United States.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Counterpath Solutions, Inc.), Private Placement Subscription Agreement (Counterpath Solutions, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is not acquiring the Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(c) the Subscriber is resident in the jurisdiction set out on the signature page of this Subscription Agreement and the transfer of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the outstanding documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ef) the Subscriber is acquiring the Securities pursuant to an exemption from the registration as principal for its own account for investment purposes only and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account of any other person and not for distribution, assignment or benefit ofresale to others, directly and no other person has a direct or indirectlyindirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any U.S. Personother person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(h) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Form 10-KSB, and the Company’s Form 10-Q, Form 8-K and any other periodic filings filed from time to time with the Commission;
(i) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares Common Stock of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the SharesSecurities;
(lo) the Subscriber (i) is able to fend for him/her/itself understands and agrees that none of the Securities have been or will be registered under the Securities Act or under any state securities or “blue sky” laws of any state of the United States and, unless so registered, may not be offered or sold in the Subscription; United States or directly or indirectly to U.S. Persons, except in accordance with the provisions of Regulation S (ii“Regulation “S”) has such knowledge promulgated under the Securities Act, pursuant to an effective registration statement under the Securities Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and experience in business matters as to be capable each case only in accordance with applicable state securities laws consistent with the laws of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentany other applicable jurisdiction;
(mp) the Subscriber acknowledges understands and agrees that offers and sales of any of the Securities prior to the expiration of a period of six months after the date of original issuance of the Securities (the six month period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the Securities Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the Securities Act or an exemption therefrom and in each case only in accordance with applicable state securities laws;
(q) the Subscriber has not acquired the Shares Securities as a result of, and it covenants that it will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 XxxS) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Securities Act and any applicable state and federal securities laws or under an exemption from such registration requirements and requirements, as otherwise provided hereinherein and in compliance with any other applicable securities laws;
(nr) the Subscriber agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the Securities Act and in each case only in accordance with applicable state securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act;
(t) the Subscriber (i) is able to fend for itself in the Subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Securities and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(u) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ov) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently the Company’s Common Stock is quoted on the Over-The-Counter Bulletin Board (“OTCBB”) operated by FINRA.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 2 contracts
Samples: Cancellation Agreement (Qnective, Inc.), Subscription Agreement (Qnective, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is not acquiring the Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(c) the Subscriber is resident in the jurisdiction set out under the "Name and Address" on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ef) the Subscriber is acquiring the Securities pursuant to an exemption from the registration as principal for its own account for investment purposes only and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account of any other person and not for distribution, assignment or benefit ofresale to others, directly and no other person has a direct or indirectlyindirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any U.S. Personother person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(kh) the Subscriber is aware that an investment in the Company and Pubco is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(j) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the SharesSecurities;
(k) the Subscriber understands and agrees that none of the Securities have been or will be registered under the 1933 Act or under any state securities or "blue sky" laws of any state of the United States and, unless so registered, may not be offered or sold in the United States or directly or indirectly to U.S. Persons, except in accordance with the provisions of Regulation S ("Regulation "S" promulgated under the 1933 Act, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state securities laws;
(l) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of a restricted period after the date of original issuance of the Securities (isuch period hereinafter referred to as the "Distribution Compliance Period") is able shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to fend for him/her/itself the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the Subscription; (ii) has such knowledge registration provisions of the 1933 Act or an exemption therefrom and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment each case only in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentaccordance with applicable state securities laws;
(m) the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result of, and it covenants that it will not itself engage in, any “"directed selling efforts” " (as defined in Regulation S under the 0000 XxxS) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(o) the Subscriber will indemnify the Company against, and will hold the Company and, where applicable, its respective directors, officers, employees, agents, advisors and shareholders harmless from, any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any representation or warranty of the Subscriber contained herein or in any document furnished by the Subscriber to the Company in connection herewith being untrue in any material respect or any breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(p) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(oq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that the shares of common stock of Pubco shall be quoted on the over-the-counter market operated by the Over-The-Counter Bulletin Board operated by FINRA.
6.2 In this Subscription Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 2 contracts
Samples: Subscription Agreement (UAN Power Corp), Subscription Agreement (UAN Power Corp)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) the Subscriber has the requisite knowledge and experience in accordance with its termsfinancial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities and the Company, and the Subscriber is providing evidence of such knowledge and experience in these matters through the information requested in the Questionnaires;
(e) all information contained in the Subscriber Questionnaires is acquiring complete and accurate and may be relied upon by the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationCompany;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(jg) the Subscriber is outside acquiring the Securities for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Securities in the United States when receiving and executing this Subscription Agreement and or to U.S. Persons;
(h) the Subscriber is acquiring the Shares Securities as principal for the Subscriber’s own accountaccount (except for the circumstances outlined in paragraph 6.1(j), for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesSecurities;
(ki) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities;
(lj) if the Subscriber is acquiring the Securities as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber (i) is able has sole investment discretion with respect to fend for him/her/itself in each such account and it has full power to make the Subscription; foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) has such knowledge the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an “Accredited Investor”, as the term is defined in Regulation D under the 1933 Act and experience in business matters as to be capable of evaluating Multilateral Instrument 45-103 adopted by the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentBritish Columbia Securities Commission;
(mk) the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nl) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingSecurities; and
(om) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTC Bulletin Board.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Eden Energy Corp), Private Placement Subscription Agreement (Eden Energy Corp)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or the Company in the jurisdiction of the Subscriber’s residence or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be boundbound and, in particular, the Subscriber warrants that the Company’s issuance of securities to the Subscriber is in full compliance with the securities laws of the Subscriber’s jurisdiction of residence;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(fd) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(ge) the Subscriber is not a U.S. Person;
(hf) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ig) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(jh) the Subscriber is acquiring the Shares for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Shares in the United States or to U.S. Persons;
(i) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, account (except for the circumstances outlined in paragraph 6.1(l)) for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(kj) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(lk) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(l) if the Subscriber is acquiring the Shares as a fiduciary or agent for one or more investor accounts the Subscriber 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.
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Online Tele-Solutions, Inc.), Private Placement Subscription Agreement (Advanced Messaging Solutions Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to the Issuer and covenants with the Company its counsel (which representations, representations and warranties and covenants shall will survive the Closing) that:
(a) unless the Subscriber has completed Schedule E, the Subscriber is not a U.S. Person;
(b) the Subscriber is resident in the jurisdiction set out on page 1 of this Agreement;
(c) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cd) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if applicable, the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(de) it has relied solely upon publicly available information relating to the Issuer and not upon any verbal or written representation as to fact or otherwise made by or on behalf of the Issuer, such publicly available information having been relied upon by the Subscriber and acknowledges that the Issuer’s counsel is acting as counsel to the Issuer, and not as counsel to the Subscriber;
(f) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. PersonSubscriber;
(g) the Subscriber is not a U.S. Personhas received and carefully read this Agreement;
(h) the Subscriber is resident aware that an investment in the jurisdiction set out under Issuer is speculative and involves certain risks, including those risks disclosed in the heading “Name Public Record and Address the possible loss of Subscriber” on the signature page of this entire Subscription AgreementAmount;
(i) the sale Subscriber has made an independent examination and investigation of an investment in the Shares to Securities and the Subscriber as contemplated Issuer and agrees that the Issuer will not be responsible in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of any way for the Subscriber’s decision to invest in the Securities and the Issuer;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares any of the CompanySecurities, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nk) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising advertising, including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media media, or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ol) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;, or
(iii) as to the future price or value of any of the Securities.
6.2 In this Agreement, the term “U.S. Person” has the meaning ascribed thereto in Regulation S, and for the purpose of this Agreement includes, but is not limited to: (a) any person in the United States; or
(ivb) that any natural person resident in the United States; (c) any partnership or corporation organized or incorporated under the laws of the Securities will be listed United States; (d) any partnership or corporation organized outside the United States by a U.S. Person principally for the purpose of investing in securities not registered under the 1933 Act, unless it is organized or incorporated, and posted for trading on owned, by accredited investors who are not natural persons, estates or trusts; or (e) any stock exchange estate or automated dealer quotation system trust of which any executor or that application has been made to list and post any of the Securities of the Company on any stock exchange administrator or automated dealer quotation systemtrustee is a U.S. Person.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement, Private Placement Subscription Agreement
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the ClosingClosing Date) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporation or other legal entity, it is duly incorporated or organized and validly subsisting existing and in good standing under the laws of its jurisdiction of incorporation or organization and all necessary approvals by its directors, shareholders shareholders, members, managers, owners and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement Agreement, and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(fd) the Subscriber is not acquiring the Shares Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(he) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(if) the sale of the Shares Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(jg) the Subscriber is outside acquiring the Securities for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Securities in the United States when receiving and executing this Subscription Agreement and or to U.S. Persons;
(h) the Subscriber is acquiring the Shares Securities as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation fractionalization thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesSecurities;
(ki) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities;
(lj) the Subscriber (i) is able to fend determine for him/her/itself in the propriety of the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mk) the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 1000 Xxx) in the United States in respect of the Shares Securities 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 the SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of the Shares Securities pursuant to registration of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(l) the Subscriber understands and agrees that none of the Shares or Underlying Shares have been registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act;
(m) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(n) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Securities not made in accordance with, and pursuant to an effective registration statement under, the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(o) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(p) the Subscriber has completed the Accredited Investor Questionnaire attached hereto as Exhibit B in a complete and accurate fashion; and
(oq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;, or
(iii) as to the future price or value of any of the Securities; or.
(ivr) that The Subscriber has reviewed the Company’s filings with the Securities and Exchange Commission, understands the business of the Company and has been afforded an opportunity to ask questions of management.
(s) The Subscriber has carefully read the Company’s filings with the Securities and Exchange Commission. The Subscriber has been given the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of this offering and to obtain such additional information, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of same as the undersigned reasonably desires in order to evaluate the investment. The Subscriber has had the opportunity to discuss any questions regarding any of the Securities will be listed and posted for trading on disclosure in Company’s filings with his counsel or other advisor. The Subscriber does not desire to receive any stock exchange or automated dealer quotation system or further information.
(t) The Subscriber is aware that application has been made to list and post any the purchase of the Securities is a speculative investment involving a high degree of risk, that there is no guarantee that the undersigned will realize any gain from this investment, and that the undersigned could lose the total amount of this investment.
(u) The Subscriber represents that if an individual, he or she has adequate means of providing for his or her current needs and personal and family contingencies and has no need for liquidity in this investment in the Securities. The Subscriber has no reason to anticipate any material change in his or her personal financial condition for the foreseeable future.
(v) The Subscriber is financially able to bear the economic risk of this investment, including the ability to hold the Securities indefinitely, or to afford a complete loss of the investment in the Securities.
(w) The Subscriber represents that the undersigned’s overall commitment to investments which are not readily marketable is not disproportionate to the Subscriber’s net worth, and the Subscriber’s investment in the Securities will not cause such overall commitment to become excessive. The undersigned understands that the statutory basis on which the Securities are being sold to the undersigned and others would not be available if the undersigned’s present intention were to hold the Securities for a fixed period or until the occurrence of a certain event. The undersigned realizes that in the view of the Securities and Exchange Commission (the “Commission”), a purchase now with a present intent to resell by reason of a foreseeable specific contingency or any anticipated change in the market value, or in the condition of the Company, or that of the industry in which the business of the Company is engaged or in connection with a contemplated liquidation, or settlement of any loan obtained by the undersigned for the acquisition of the Subscriber, and for which such Subscriber may be pledged as security or as donations to religious or charitable institutions for the purpose of securing a deduction on any stock exchange an income tax return, would, in fact, represent a purchase with an intent inconsistent with the undersigned’s representations to the Company, and the Commission would then regard such sale as a sale for which the exemption from registration is not available. The undersigned will not pledge, transfer or automated dealer quotation systemassign this Subscription Agreement.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (FNDS3000 Corp), Private Placement Subscription Agreement (FNDS3000 Corp)
Representations, Warranties and Covenants of the Subscriber. (a) 7.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is not acquiring the Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(c) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ef) the Subscriber is acquiring the Securities pursuant to an exemption from the registration as principal for its own account for investment purposes only and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account of any other person and not for distribution, assignment or benefit ofresale to others, directly and no other person has a direct or indirectlyindirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any U.S. Personother person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(kh) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Forms 00-X, 00-X, 0-X and any other filings filed with the SEC;
(i) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(j) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the SharesSecurities;
(k) the Subscriber understands and agrees that none of the Securities have been or will be registered under the 1933 Act or under any state securities or “blue sky” laws of any state of the United States and, unless so registered, may not be offered or sold in the United States or directly or indirectly to U.S. Persons, except in accordance with the provisions of Regulation S (“Regulation “S” promulgated under the 1933 Act, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state securities laws;
(l) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of a restricted period after the date of original issuance of the Securities (isuch period hereinafter referred to as the “Distribution Compliance Period”) is able shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to fend for him/her/itself the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the Subscription; (ii) has such knowledge registration provisions of the 1933 Act or an exemption therefrom and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment each case only in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentaccordance with applicable state securities laws;
(m) the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result of, and it covenants that it will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 XxxS) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(o) the Subscriber will indemnify the Company against, and will hold the Company and, where applicable, its respective directors, officers, employees, agents, advisors and shareholders harmless from, any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any representation or warranty of the Subscriber contained herein or in any document furnished by the Subscriber to the Company in connection herewith being untrue in any material respect or any breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(p) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(oq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently the Company’s common shares are quoted on the over-the- counter market operated by the Over-The-Counter Bulletin Board operated by FINRA.
7.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 2 contracts
Samples: Subscription Agreement (Eden Energy Corp), Subscription Agreement (Coronado Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber it has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, and it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsSubscriber;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(hd) the Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(ie) the sale of the Shares Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(jf) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, for investment purposes only, only and not with a view to, to resale or for, resale, distribution or fractionalisation thereofand, in whole particular, it has no intention to distribute either directly or indirectly any of the Securities in partthe United States or to U.S. Persons;
(g) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(h) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Securities and the Company;
(i) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(j) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no other person has a direct longer accurate or indirect beneficial interest in such Shareshave been breached, the Subscriber shall promptly notify the Company;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(ml) the Subscriber acknowledges understands and agrees that none of the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S Securities have been registered under the 0000 Xxx) 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in respect accordance with the provisions of Regulation S, pursuant to an effective registration statement under the Shares which would include any activities undertaken for the purpose of1933 Act, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Shares pursuant to the 1933 Act and any in each case only in accordance with applicable state and federal provincial securities laws or under laws;
(m) by completing the Questionnaire, the Subscriber is representing and warranting that it is an exemption from such registration requirements and "accredited investor" as otherwise provided hereinthat term is defined in Regulation D of the 1933 Act;
(n) all information contained in the Questionnaire is complete and accurate and may be relied upon by the Company, and the Subscriber will notify the Company immediately of any material change in any such information occurring prior to the closing of the purchase of the Securities;
(o) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Securities;
(p) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares or the Warrant Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(q) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(or) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTCBB.
6.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Counterpath Solutions, Inc.), Private Placement Subscription Agreement (Counterpath Solutions, Inc.)
Representations, Warranties and Covenants of the Subscriber. The Subscriber hereby represents, warrants and covenants to the Corporation (and acknowledges that the Corporation is relying thereon) that:
(a) The the Subscriber is purchasing, or is deemed by Section 2.3(4) of NI 45-106 to be purchasing the Subscription Receipts as principal, and the Subscriber hereby represents confirms the truth and warrants to and covenants with accuracy of all statements made by the Company (which representations, warranties and covenants shall survive the Closing) that:Subscriber in such Accredited Investor Certificate;
(b) the Subscriber is resident in the Province of Ontario;
(c) the Subscriber is purchasing the Subscription Receipts for investment purposes only and not with a view to any resale or distribution of all or any of the Subscription Receipts in violation of applicable Securities Laws, and not in a transaction or series of transactions involving a purchase and sale or a repurchase and resale in the course of or incidental to a distribution;
(d) the Subscriber is not a U.S. Person (within the meaning set forth in Rule 902(k) of Regulation S under the U.S. Securities Act) nor subscribing for the Subscription Receipts for the account of a U.S. Person or for resale in the United States and the Subscriber confirms that the Subscription Receipts have not been offered to the Subscriber in the United States and that this Subscription Agreement has not been signed by the Subscriber in the United States;
(e) the subscription for the Subscription Receipts has not been made through or as a result of, and the distribution of the Subscription Receipts and the Additional Notes is not being accompanied by any advertisement, including without limitation in printed public media, radio, television or telecommunications, including electronic display, or as part of a general solicitation;
(f) the Subscriber has not been created and is not being used primarily to permit the purchase of securities without a prospectus in reliance on an exemption from the prospectus requirements of applicable securities legislation;
(g) the Subscriber understands that it may not sell, hypothecate, transfer, assign or otherwise dispose of the Subscription Receipts or the Additional Notes, any part thereof, or any interest therein, unless and until the Subscriber has determined that the intended disposition does not violate the laws of any jurisdiction;
(h) the Subscriber has done its own due diligence, and obtained such independent business, legal capacity and competence to enter into tax advice as it considers necessary with respect to:
(i) the purchase of Subscription Receipts and execute the Notes; and
(ii) the execution, delivery and performance by it of this Subscription Agreement and the transactions contemplated hereunder,
(iii) and confirms that, except as set forth herein, no representation has been made to take all actions required pursuant hereto and, if it by or on behalf of the Corporation with respect thereto;
(i) the Subscriber is a corporation, it is has been duly incorporated and validly subsisting organized under the laws of its jurisdiction of incorporation and is validly existing and all approvals necessary approvals by its directors, shareholders for the Subscriber to execute and others have been obtained to authorize execution and performance of deliver this Subscription Agreement on behalf and to perform its obligations hereunder have been obtained;
(j) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and constitutes a legal, valid and binding obligation of the Subscriber, enforceable against it in accordance with its terms, subject only to (i) any limitation under applicable laws relating to bankruptcy, insolvency, arrangements or other laws of general application affecting the enforcement of creditors’ rights, and (ii) the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction;
(k) this Subscription Agreement will not violate or conflict with the terms of any restriction, agreement or undertaking respecting purchases of securities by the Subscriber;
(cl) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any as of the terms and provisions of any law applicable to the Subscriber or of any agreementdate hereof, written or oral, to which the Subscriber may be a party or by which the Subscriber is the sole beneficial owner (or may be bound;
(d) contractually holds the Subscriber has duly executed sole power and delivered this Subscription Agreement and it constitutes a valid and binding agreement discretion with respect to the rights of the Subscriber enforceable against the Subscriber in accordance with its terms;
(esole beneficial owner) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out existing Notes issued under the heading Trust Indenture in an aggregate principal amount of not less than $120,000,000 (the “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes onlyRelevant Notes”), and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability right and power to bear comply with the economic risks of its prospective investment and can afford the complete loss of such investmentcovenant contained in (n);
(m) no person has any agreement or option, or any right or privilege (whether by law or contract) for the Subscriber acknowledges that purchase, acquisition or transfer of the Subscriber has not acquired the Shares as a result ofRelevant Notes, and will the Relevant Notes are not itself engage insubject to any liens, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of the Shares which would include any activities undertaken for the purpose ofencumbrances, obligations or other restrictions that could reasonably be expected adversely affect its ability to have perform the effect of, conditioning the market covenant in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein(n);
(n) in a consent solicitation initiated by the Corporation after the date hereof in order to obtain the required consents under the Trust Indenture to implement the First Supplemental Indenture (the “Consent Solicitation”), the Subscriber is not aware of any advertisement of any covenants and agrees to (a) deliver a conforming consent and direction (or directions) to the tabulation agent for the Consent Solicitation with respect to the Relevant Notes, (B) require the nominal record holder(s) of the Securities Relevant Notes to deliver a conforming consent and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made direction to the Subscriber tabulation agent for the Consent Solicitation or (C) take any written or oral representations:
(i) other action that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as may be required, in each case with respect to the future price or value of any of Relevant Notes, in order to approve the Securities; or
(iv) that any of First Supplemental Indenture and allow the Securities will be listed trustee under the Trust Indenture to execute and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of deliver the Securities of the Company on any stock exchange or automated dealer quotation systemFirst Supplemental Indenture.
Appears in 2 contracts
Samples: Subscription Agreement (Postmedia Network Canada Corp.), Subscription Agreement (Postmedia Network Canada Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 7.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(fd) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(ge) the Subscriber is not a U.S. Person;
(hf) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ig) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(jh) the Subscriber is acquiring the Shares for investment only and not with a view to engaging in a business involving the resale or distribution of the Shares and, in particular, it has no intention to distribute either directly or indirectly any of the Shares in the United States or to U.S. Persons;
(i) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesSecurities;
(kj) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(lk) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(ml) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) 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 Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nm) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(on) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system.
Appears in 2 contracts
Samples: Collaboration Agreement (Clean Power Technologies Inc.), Private Placement Subscription Agreement (Clean Power Technologies Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(c) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Subscription Agreement and the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. PersonSubscriber;
(g) the Subscriber is acquiring the Shares as principal for its own account for investment purposes only and not for the account of any other person and not for distribution, assignment or resale to others, and no other person has a U.S. Persondirect or indirect beneficial interest in such Shares, and it has not subdivided its interest in the Shares with any other person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s 's own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such the Shares;
(i) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(j) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Company;
(k) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(n) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(o) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(lp) the Subscriber (i) is able to fend for him/her/itself understands and agrees that none of the Shares have been or will be registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the Subscription; United States or, directly or indirectly, to U.S. Persons, as that term is defined in Regulation S under the 1933 Act (ii) has such knowledge "Regulation S"), except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment each case only in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentaccordance with applicable state securities laws;
(mq) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state securities laws;
(r) the Subscriber acknowledges that the Subscriber it 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 0000 Xxx) 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 Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(ns) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(t) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(u) the Subscriber (i) is able to fend for itself in the Subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(v) the Subscriber is not aware of any advertisement of any of the Securities Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ow) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;Shares,
(ii) that any person will refund the purchase price of any of the Securities;Shares,
(iii) as to the future price or value of any of the Securities; Shares, or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system.
6.2 In this Subscription Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 2 contracts
Samples: Subscription Agreement (Lightscape Technologies Inc.), Subscription Agreement (Lightscape Technologies Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) ), and acknowledges that the Company is relying thereon, that:
(a) the Subscriber is not a U.S. Person as that term is defined in Regulation S;
(b) the Subscriber is not acquiring the Note for the account or benefit of, directly or indirectly, any U.S. Person as that term is defined in Regulation S;
(c) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and upon acceptance thereof by the Company it will constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(eg) the Subscriber is acquiring the Securities pursuant to an exemption from the registration as principal for its own account for investment purposes only and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account of any other person and not for distribution, assignment or benefit ofresale to others, directly and no other person has a direct or indirectlyindirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any U.S. Person;
(g) the Subscriber is not a U.S. Personother person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Note as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(i) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered risk factors being communicated by the Company and/or the Subscriber’s professional advisor(s);
(j) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(k) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(n) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(o) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company’s Shares, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the Shares;
(lp) the Subscriber is not an underwriter of, or dealer in, the Company’s Shares, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the Securities;
(q) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of restricted period after the date of original issuance of the Securities (the twelve month period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state securities laws;
(r) the Subscriber agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(s) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) 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 SharesSecurities and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mt) the Subscriber acknowledges that will indemnify the Subscriber has not acquired the Shares as a result ofCompany against, and will not itself engage inhold the Company and, where applicable, its respective directors, officers, employees, agents, advisors and shareholders harmless from, any “directed selling efforts” and all loss, liability, claim, damage and expense whatsoever (as defined including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in Regulation S under the 0000 Xxxinvestigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) in the United States in respect arising out of or based upon any representation or warranty of the Shares which would include Subscriber contained herein or in 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 the Shares; provided, however, that document furnished by the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and Company in connection herewith being untrue in any applicable state and federal securities laws material respect or under an exemption from such registration requirements and as otherwise provided hereinany breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(nu) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ov) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently the Company’s common shares are quoted on any exchange once the Company has obtained approval from the SEC.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 2 contracts
Samples: Subscription Agreement (Network Cn Inc), Subscription Agreement (Network Cn Inc)
Representations, Warranties and Covenants of the Subscriber. The Subscriber hereby represents, warrants, and covenants to the Corporation as follows, and acknowledges that the Corporation is executing and delivering this Agreement in reliance upon such representations, warranties, and covenants, which shall survive the Closing for such period as specified herein.
(a) The Subscriber hereby represents is a valid and warrants to and covenants with the Company (which representationssubsisting corporation, warranties and covenants shall survive the Closing) that:
(b) the Subscriber has the all requisite legal capacity and competence authority to enter into this Agreement, and execute any other instruments, certificates, and other documents executed and delivered by the Subscriber at the Closing or otherwise in connection with this Subscription Agreement and to take all actions required pursuant hereto andthe transaction contemplated in this Agreement. The execution, if the Subscriber is a corporationdelivery, it is duly incorporated and 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 and the consummation of the transaction contemplated by this Agreement have been duly and validly authorized and approved by all necessary action on behalf the part of the Subscriber;
(c) the entering into of this Subscription . This Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has been duly executed and delivered this Subscription Agreement by the Subscriber and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;terms (except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other Laws of general application affecting enforcement of creditors’ rights generally and as limited by Laws relating to the availability of specific performance, injunctive relief, or other equitable remedies) and will not violate or conflict with the articles, amended certificate of designations, or by-laws of the Subscriber or the terms of any restriction, agreement, or undertaking respecting purchases of securities by the Subscriber.
(eb) the The Subscriber is acquiring the Purchased Securities pursuant as principal for its own account and not for the benefit of any other person (within the meaning of applicable securities legislation), with the present intention of holding the Purchased Securities for purposes of investment, and that it has no intention of selling the Purchased Securities in a public distribution in violation of any applicable securities Laws.
(c) The Subscriber is solely responsible for obtaining such professional advice as it considers appropriate in connection with its subscription hereunder, and has been independently advised as to or is aware of the restrictions with respect to trading in the Purchased Securities; it acknowledges that it is aware of the characteristics of the Purchased Securities, the risks relating to an exemption from investment therein; and it covenants and agrees that it will not resell the registration and prospectus requirements Purchased Securities, except in accordance with the provisions of applicable securities legislation in all jurisdictions relevant and will consult with its own legal advisor with respect to this Subscriptionsuch compliance.
(a) The Subscriber has not received, andnor has it requested, as a consequencenor does it have any need to receive, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided any offering memorandum, or sales or advertising literature with respect to the Subscriber pursuant to applicable securities legislation;Corporation.
(fd) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the The Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has directors and/or officers have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective the Subscriber’s investment in the Shares; Purchased Securities and (iii) has the ability Subscriber is able to bear the economic risks of its prospective investment and can afford the complete loss of such investment;.
(me) The Subscriber is aware that this Agreement is subject to acceptance and allotment by the Corporation.
(f) The Subscriber acknowledges and understands that the Corporation is a “private issuer” as defined in CSA National Instrument 45-106 (Prospectus Exemptions). As such, the Subscriber acknowledges understands that the Corporation does not file any continuous disclosure documents with any securities commission or any other securities regulatory authority in Canada or anywhere else. IN ADDITION, THE SUBSCRIBER FULLY UNDERSTANDS THAT: (1) THE PURCHASED SECURITIES ARE SUBJECT TO TRANSFER RESTRICTIONS; (2) THERE IS NO MARKET FOR THE CORPORATION’S COMMON SHARES AND THERE IS NO ASSURANCE THAT A MARKET WILL EVER DEVELOP; (3) THE SUBSCRIBER MAY NOT SELL THE PURCHASED SECURITIES EXCEPT IN COMPLIANCE WITH THE CORPORATION’S APPLICABLE TRANSFER RESTRICTIONS AND APPLICABLE SECURITIES LAW.
(g) At the Closing Time, the Subscriber will be an existing security holder of the Corporation.
(h) The Subscriber has not acquired employed or incurred any liability to any broker, finder, or agent for any brokerage fees, finder’s fee, commissions, or other amounts with respect to this Agreement or any of the Shares as a result of, transactions contemplated hereby.
(i) The Subscriber understands and acknowledges that none of the Purchased Securities have been or will not itself engage in, any “directed selling efforts” (as defined in Regulation S be registered under the 0000 Xxx) in U.S. Securities Act or Blue Sky Laws; accordingly, the Purchased Securities are “restricted securities” within the meaning of the U.S. Securities Act, the United States in respect Exchange Act of the Shares which would include any activities undertaken for the purpose of1934, or that could reasonably be expected to have the effect ofas amended, conditioning the market in the United States for the resale of the Shares; providedand all rules and regulations promulgated thereunder and under applicable Blue Sky Laws (collectively, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;“U.S. Securities Laws”).
(nj) the The Subscriber is not aware of any advertisement of any of purchasing the Purchased Securities and is not acquiring the Shares as a result of any form of “general solicitation solicitation” or “general advertising including advertising” (as those terms are used in Regulation D under the U.S. Securities Act (“Regulation D”)), including, without limitation, advertisements, articles, notices notices, or other communications published in any newspaper, magazine or magazine, website, similar media media, or broadcast over radio or radio, television, or the internet or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and.
(ok) no person has made The Subscriber understands that if it decides to offer, sell, pledge, or otherwise transfer any of the Purchased Securities, they may be offered, sold, pledged, or otherwise transferred only: (i) to the Corporation; (ii) outside the United States in compliance with Rule 904 of Regulation S promulgated under the U.S. Securities Act (“Regulation S”) and in compliance with applicable local Laws and regulations; (iii) pursuant to a registration statement that has been declared effective under the U.S. Securities Act and is available for resale of the Purchased Securities; or (iv) in compliance with any other exemption from registration under the U.S. Securities Act, and in each case, in compliance with any applicable Blue Sky Laws. The Subscriber any written further understands and agrees that in the event of a transfer pursuant to the foregoing clause (ii) or oral representations(iv), the Corporation will require a legal opinion of counsel, or other evidence, reasonably satisfactory to the Corporation that such transfer is exempt from registration under the U.S. Securities Laws.
(l) The Subscriber understands that upon the original issuance thereof, and until such time as the same is no longer required under applicable requirements of the U.S. Securities Laws, certificates representing the Purchased Securities and all certificates issued in exchange therefore or in substitution thereof, will bear the following legends:
(m) The Subscriber is aware that its ability to enforce civil liabilities under the U.S. Securities Laws may be affected adversely by, among other things: (i) the fact that any person will resell or repurchase any the Corporation is continued under the laws of the Securities;
Canada; (ii) that any person will refund the purchase price of any some or all of the Securities;
directors and officers may be residents of countries other than the United States; and (iii) as to the future price all or value of any a substantial portion of the Securities; or
(iv) that any assets of the Securities will Corporation and such persons may be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of located outside the Securities of the Company on any stock exchange or automated dealer quotation systemUnited States.
Appears in 2 contracts
Samples: Subscription Agreement (Viking Energy Group, Inc.), Subscription Agreement (Camber Energy, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 5.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the ClosingClosing Date) that:
(a) the Subscriber is resident in the jurisdiction set out on page 2 of this Subscription Agreement;
(b) the Subscriber is acquiring the Units as principal for investment only and not with a view to, or for, resale, distribution or fractionalization thereof, in whole or in part;
(c) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if applicable, the Subscriber constating documents of, the Subscriber, or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. PersonSubscriber;
(g) the Subscriber is not a U.S. Personhas received and carefully read this Subscription Agreement;
(h) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is resident able to bear the economic risks of an investment in the jurisdiction set out under Securities for an indefinite period of time, and can afford the heading “Name and Address complete loss of Subscriber” on the signature page of this Subscription Agreementsuch investment;
(i) the sale Subscriber has the requisite knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the Shares to investment in the Securities and the Company, and the Subscriber as contemplated is providing evidence of knowledge and experience in this Subscription Agreement complies with or is exempt from these matters through the applicable securities legislation of information requested in the jurisdiction of residence of the SubscriberQuestionnaires;
(j) the Subscriber is outside understands and agrees that the United States when receiving Company and executing others will rely upon the truth and accuracy of the acknowledgements, representations, warranties, covenants and agreements contained in this Subscription Agreement and the Questionnaires, and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(k) the Subscriber is acquiring aware that an investment in the Shares as principal Company is speculative and involves certain risks, including the possible loss of the investment;
(l) the Subscriber is purchasing the Units for the Subscriber’s its own account, account for investment purposes only, only and not with a view tofor the account of any other person and not for distribution, assignment or for, resale, distribution or fractionalisation thereof, in whole or in partresale to others, and no other person has a direct or indirect beneficial interest is such Units, and the Subscriber has not subdivided his interest in such Sharesthe Units with any other person;
(km) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company's common stock, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided hereinUnits;
(n) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in anyway whatsoever for the Subscriber's decision to invest in the Securities and the Company;
(o) if the Subscriber is acquiring the Units as a fiduciary or agent for one or more investor accounts, the Subscriber has sole investment discretion with respect to each such account, and the Subscriber has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account;
(p) the Subscriber is not aware of any advertisement of any of the Securities Units and is not acquiring the Shares Units as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(oq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the shares of the Company's common stock on the OTC Bulletin Board; and
(r) the Subscriber acknowledges and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Subscription Agreement:
(i) a fully completed and executed Questionnaires in the forms attached hereto as Schedule A and Schedule B, and
(ii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as a qualified investor.
5.2 In this Subscription Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for the purpose of the Subscription Agreement includes any person in the United States.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Megawest Energy Corp.), Private Placement Subscription Agreement (Megawest Energy Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) the Subscriber is not a U.S. Person, as that term is defined in accordance with its termsRegulation S;
(e) the Subscriber is not acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person, as that term is defined in Regulation S;
(f) the Subscriber is an Accredited Investor (as defined in National Instrument 45-106) and the Subscriber agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Agreement:
(i) a fully completed and executed Questionnaire in the form attached as Exhibit A hereto; and
(ii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as an Accredited Investor;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ih) the sale of the Shares Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(ji) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s 's own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesSecurities;
(j) the decision to execute this Agreement and acquire the Units hereunder has not been based upon any oral or written representation as to fact or otherwise made by or on behalf of the Company;
(k) the Subscriber is acquiring the Securities as principal for its own account for investment purposes only and not for the account of any other person and not for distribution, assignment or resale to others, and no other person has a direct or indirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any other person;
(l) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Form 10-KSB and any other filings filed with the SEC;
(m) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(n) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(o) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(p) the Company is entitled to rely on the representations and warranties of the Subscriber contained in this Agreement and the Questionnaire and the Subscriber will indemnify and hold harmless the Company and, where applicable, its directors, officers, employees, agents, advisors and shareholders, from and against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any representation or warranty of the Subscriber contained herein, the Questionnaire or in any document furnished by the Subscriber to the Company in connection herewith being untrue in any material respect or any breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(q) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(r) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(s) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities or any of them;
(lt) the Subscriber (i) is able to fend for him/her/itself understands and agrees that none of the Securities have been or will, except as set forth in this Agreement, be registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the Subscription; (ii) has such knowledge United States or, directly or indirectly, to U.S. Persons, as that term is defined in Regulation S, except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment each case only in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentaccordance with applicable state securities laws;
(mu) the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 XxxS) in the United States in respect of the Shares Securities 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 the SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of the Shares and the Underlying Shares pursuant to registration of the Shares and the Underlying Shares pursuant to the 1933 Act and any applicable state and federal provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nv) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of a period of one year after the date of original issuance of the Securities (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(w) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(x) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(y) the Subscriber is not aware of any advertisement of of, or any general solicitation in respect of, any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingSecurities; and
(oz) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system; except that the Company’s Common Stock is currently approved for trading on the U.S. Over the Counter Bulletin Board.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (California Oil & Gas Corp), Private Placement Subscription Agreement (California Oil & Gas Corp)
Representations, Warranties and Covenants of the Subscriber. (a) 4.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriberhereto;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ed) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscriptiona director, andofficer, as a consequence, the Subscriber will not be entitled to use most employee or control person of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;Company
(fe) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(gf) the Subscriber is not a U.S. Person;
(hg) the Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(ih) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(i) the Subscriber is acquiring the Shares for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Shares in the United States or to U.S. Persons;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s 's own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system.
Appears in 2 contracts
Samples: Director Services Agreement (Bulldog Technologies Inc), Director Services Agreement (Bulldog Technologies Inc)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(bi) the Subscriber is resident in the jurisdiction set forth on page 3 underneath the Subscriber’s name and signature;
(ii) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ciii) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(iv) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in anyway whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(v) all information contained in the Questionnaire is complete and accurate and may be relied upon by the Company and the Subscriber will notify the Company immediately of any material change in any such information occurring prior to the closing of the purchase of the Securities;
(vi) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dvii) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsSubscriber;
(eviii) the Subscriber is acquiring it understands and agrees that none of the Securities pursuant to an exemption from have been registered under the registration and prospectus requirements of applicable 1933 Act or any state securities legislation in all jurisdictions relevant to this Subscriptionlaws, and, as a consequenceunless so registered, none may be offered or sold in the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit ofUnited States or, directly or indirectly, any to U.S. PersonPersons (as defined herein) except pursuant to an exemption from, or in a transaction not subject to, the Registration Requirements of the 1933 Act and in each case only in accordance with state securities laws;
(gix) it is purchasing the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal Securities for the Subscriber’s its own account, account for investment purposes only, only and not with a view tofor the account of any other person and not for distribution, assignment or for, resale, distribution or fractionalisation thereof, in whole or in partresale to others, and no other person has a direct or indirect beneficial interest in is such Shares, and the Subscriber has not subdivided his interest in the Securities with any other person;
(kx) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) it is able to fend for him/her/itself in the Subscription; (ii) has such knowledge Subscription and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mxi) if it is acquiring the Securities as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgments, representations and agreements on behalf of such account;
(xii) it understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgments, representations and agreements contained in sections 5 and 6 hereof and agrees that if any of such acknowledgments, representations and agreements are no longer accurate or have been breached, it shall promptly notify the Company;
(xiii) the Subscriber:
(i) is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the Subscriber is resident (the “International Jurisdiction”) which would apply to the acquisition of the Securities,
(ii) is purchasing the Securities pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Subscriber is permitted to purchase the Securities under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions,
(iii) acknowledges that the applicable securities laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of any of the Securities, and
(iv) represents and warrants that the acquisition of the Securities by the Subscriber does not trigger:
I. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or
II. any continuous disclosure reporting obligation of the Company in the International Jurisdiction, and
(xiv) the Subscriber acknowledges that will, if requested by the Subscriber has not acquired Company, deliver to the Shares as Company a result ofcertificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under iv) above to the 0000 Xxx) in the United States in respect satisfaction of the Shares which would include any activities undertaken for the purpose ofCompany, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;acting reasonably
(nxv) the Subscriber is not aware of any advertisement of any of acquiring the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio radio, or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(oxvi) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
(b) In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S and for the purpose of the Subscription includes any person in the United States.
Appears in 2 contracts
Samples: Intellectual Property Purchase and Sale Agreement (Biologix Hair Inc.), Intellectual Property Purchase and Sale Agreement (Biologix Hair Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company Issuer (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is a resident of, or if not an individual, has a head office or is otherwise subject to the laws of, the jurisdiction of its address set out on page 2 hereof, and that such address is the residence of the Subscriber or the place of business of the Subscriber at which the Subscriber received and accepted the offer to acquire the Shares and was not created or used solely for the purpose of acquiring the Shares.
(b) unless the Subscriber is a U.S. Purchaser (as defined in Exhibit B) and has concurrently herewith completed, executed and delivered Exhibit B, the Subscriber is not in the United States, the Subscriber (and any person acting on its behalf) did not receive an offer to purchase the Shares in the United States, and the individuals making the order to purchase the Shares and executing and delivering this Agreement on behalf of the Subscriber were not in the United States when the order was placed and this Agreement was executed and delivered;
(c) no "bad actor" Disqualification Event is applicable to the Subscriber, except for a Disqualification Event as to which Rule 506(d)(2)(ii-iv) or (d)(3), is applicable;
(d) if the Subscriber is resident outside of Canada and the United States:
(i) the Subscriber is purchasing the Shares as principal;
(ii) the Subscriber is knowledgeable of, or has been independently advised as to, the applicable laws of the securities regulators having application in the jurisdiction in which the Subscriber is resident (the "International Jurisdiction") which would apply to the offer and sale of the Shares (in addition to the laws of Canada, if applicable), and the Subscriber is purchasing the Shares pursuant to, and in compliance with, the laws of the International Jurisdiction;
(iii) the Subscriber is purchasing the Shares pursuant to exemptions from prospectus or equivalent requirements under applicable laws or, if such is not applicable, the Subscriber is permitted to purchase the Shares under the applicable laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions;
(iv) the applicable laws of the authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the offer, issue, sale or resale of any of the Shares;
(v) the purchase of the Shares by the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
B. any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and
(vi) the Subscriber will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (iii), (iv) and (v) above to the satisfaction of the Issuer, acting reasonably;
(e) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cf) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if applicable, the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dg) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. PersonSubscriber;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name has received and Address of Subscriber” on the signature page of carefully read this Subscription Agreement;
(i) the sale Subscriber is aware that an investment in the Issuer is speculative and involves certain risks, including the possible loss of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriberentire investment;
(j) the Subscriber is outside the United States when receiving has made an independent examination and executing this Subscription Agreement and is acquiring investigation of an investment in the Shares as principal and the Issuer and agrees that the Issuer will not be responsible in any way whatsoever for the Subscriber’s own account, for investment purposes only, 's decision to invest in the Shares and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Issuer;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares any of the CompanyShares, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesShares or any of them;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;Shares,
(ii) that any person will refund the purchase price of any of the Securities;Shares, or
(iii) as to the future price or value of any of the SecuritiesShares; orand
(m) the Subscriber acknowledges and agrees that the Issuer shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Issuer, along with an executed copy of this Agreement:
(i) fully completed and executed Accredited Investor Certificate in the form attached hereto as Exhibit A, if applicable;
(ii) fully completed and executed U.S. Questionnaire in the form attached hereto as Exhibit B, if applicable;
(iii) by completing the Accredited Investor Certificate and all applicable appendices, the Subscriber is representing and warranting that the Subscriber satisfies one of the categories of prospectus exemptions under the Private Issuer Exemption set out in Section 2.4 of NI 45-106; and
(iv) such other supporting documentation that any of the Securities will be listed and posted for trading on any stock exchange Issuer or automated dealer quotation system or that application has been made its legal counsel may request to list and post any of establish the Securities of the Company on any stock exchange or automated dealer quotation systemSubscriber's qualification as a qualified investor.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Shackelford Pharma Inc.), Private Placement Subscription Agreement (Shackelford Pharma Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is not acquiring the Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(c) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. PersonSubscriber;
(g) the Subscriber is acquiring the Securities as principal for its own account for investment purposes only and not for the account of any other person and not for distribution, assignment or resale to others, and no other person has a U.S. Persondirect or indirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any other person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(i) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Forms 10-X, 00-X, 0-X and any other filings filed with the SEC;
(j) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(k) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(n) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(o) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the SharesSecurities;
(lp) the Subscriber (i) is able to fend for him/her/itself understands and agrees that none of the Securities have been or will be registered under the 1933 Act or under any state securities or “blue sky” laws of any state of the United States and, unless so registered, may not be offered or sold in the Subscription; United States or directly or indirectly to U.S. Persons, except in accordance with the provisions of Regulation S (ii) has such knowledge “Regulation “S” promulgated under the 1933 Act, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment each case only in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentaccordance with applicable state securities laws;
(mq) the Subscriber acknowledges understands and agrees that offers and sales of any of the Securities prior to the expiration of a period of six months after the date of original issuance of the Securities (the six month period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state securities laws;
(r) the Subscriber has not acquired the Shares Securities as a result of, and it covenants that it will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 XxxS) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(ns) the Subscriber agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(t) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(u) the Subscriber (i) is able to fend for itself in the Subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Securities and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(v) the Subscriber will indemnify the Company against, and will hold the Company and, where applicable, its respective directors, officers, employees, agents, advisors and shareholders harmless from, any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any representation or warranty of the Subscriber contained herein or in any document furnished by the Subscriber to the Company in connection herewith being untrue in any material respect or any breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(w) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ox) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently the Company’s common shares are quoted on the over-the-counter market operated by the Over-The-Counter Bulletin Board operated by FINRA.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 2 contracts
Samples: Subscription Agreement (Anavex Life Sciences Corp.), Subscription Agreement (Anavex Life Sciences Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is not acquiring the Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(c) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(d) the sale of the Securities to the Subscriber as contemplated by the delivery of this Subscription Agreement, the acceptance of it by the Company and the issuance of the Securities to the Subscriber complies with all applicable laws of the Subscriber’s jurisdiction of residence or domicile and will not cause the Company to become subject to or comply with any disclosure, prospectus or reporting requirements under any such applicable laws;
(e) the Subscriber:
i. is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the Subscriber is resident (the “International Jurisdiction”) which would apply to the acquisition of the Securities;
ii. the Subscriber is purchasing the Securities pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Subscriber is permitted to purchase the Securities under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions;
iii. the applicable securities laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
iv. the purchase of the Securities by the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
B. any continuous disclosure reporting obligation of the Company in the International Jurisdiction; and the Subscriber will, if requested by the Company, deliver to the Company and the Agent a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Company, acting reasonably;
(f) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time, and can afford the complete loss of such investment;
(g) the Subscriber is purchasing the Securities as principal for investment only and not with a view to, or for, resale, distribution or fractionalization thereof, in whole or in part, and, in particular, it has no intention to distribute either directly or indirectly any of the Securities in the United States or to U.S. Persons;
(h) the Subscriber is outside the United States when receiving and executing this Subscription Agreement;
(i) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of the Distribution Compliance Period shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state securities laws;
(j) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(k) the Subscriber acknowledges that it has not acquired the Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Securities 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 Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Securities pursuant to registration of any of the Securities pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(l) the Subscriber (i) is able to fend for itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Securities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the investment;
(n) the Subscriber has received and carefully read this Subscription Agreement;
(o) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in anyway whatsoever for the Subscriber's decision to invest in the Securities and the Company;
(p) the Subscriber has the requisite knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities and the Company;
(q) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement, and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, it shall promptly notify the Company;
(r) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cs) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if applicable, the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dt) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(ku) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities;
(lv) the Subscriber (i) is able to fend for him/her/itself in understands and agrees that none of the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S Securities have been registered under the 0000 Xxx) 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in respect accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Shares which would include 1933 Act;
(w) the Subscriber understands and agrees that the Company will refuse to register 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 transfer of the Shares; providedSecurities not made in accordance with the provisions of Regulation S, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to an effective registration of the Shares pursuant to statement under the 1933 Act and any applicable state and federal securities laws or under pursuant to an available exemption from such the registration requirements and as otherwise provided hereinof the 1933 Act;
(nx) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(oy) no person has made to the Subscriber any written or oral representations:
(i) i. that any person will resell or repurchase any of the Securities;
(ii) . that any person will refund the purchase price of any of the Securities;
(iii) . as to the future price or value of any of the Securities; or
(iv) . that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTC Bulletin Board.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement, Private Placement Subscription Agreement (Soefl Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1. The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber It has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cb) the The entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if the Subscriber is a corporate entity, the documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the The Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) The Subscriber in accordance with its termshas received and carefully read this Subscription Agreement;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the The Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(if) the sale of The Subscriber is purchasing the Shares pursuant to the Subscriber as contemplated in this Subscription Agreement complies with exemptions from prospectus or is exempt from the equivalent requirements under applicable securities legislation of the jurisdiction of residence of the Subscriberlaws;
(jg) the The Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, only and not with a view toto resale or distribution;
(h) The Subscriber is aware that an investment in the Company is speculative and involves certain risks, or forincluding the possible loss of the entire investment;
(i) The Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Company;
(j) The Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, resale, distribution or fractionalisation thereof, (ii) has no need for liquidity in whole or in partthis investment, and no other person has a direct or indirect beneficial interest (iii) is able to bear the economic risks of an investment in such Sharesthe Shares for an indefinite period of time;
(k) The Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber is not an underwriter of, or dealer in, the common shares of shall promptly notify the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the The Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the The Subscriber acknowledges understands and agrees that the Subscriber has not acquired the Shares are “restricted securities” as a result of, and will not itself engage in, any “directed selling efforts” (as that term is defined in Regulation S Rule 144 promulgated by the Commission under the 0000 Xxx) in the United States in respect of the Shares which would include any activities undertaken for the purpose ofSecurities Act, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; providedShares is restricted by federal and state securities laws and, howeveraccordingly, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of must be held indefinitely unless their resale is subsequently registered under the Shares pursuant to the 1933 Securities Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided hereinis available for their resale;
(n) The Subscriber is representing and warranting that it is an "accredited investor" as that term is defined in Rule 501 of Regulation D of the 1933 Act;
(o) The Subscriber will notify the Company immediately of any material change in any such information occurring prior to the closing of the purchase of the Shares;
(p) The Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) The Subscriber is not aware of any advertisement of any of the Securities Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(or) no person has made The Subscriber acknowledges and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Subscriber any written or oral representations:
(i) Company, along with an executed copy of this Subscription Agreement such other supporting documentation that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation systemits legal counsel may request to establish the Subscriber's qualification as a qualified investor.
Appears in 2 contracts
Samples: Debt Settlement Agreement, Debt Settlement Agreement (Cleanspark, Inc.)
Representations, Warranties and Covenants of the Subscriber. By executing this Subscription Agreement, the Subscriber (aon its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) The Subscriber hereby represents and represents, warrants to and covenants with to the Company Trust, the Agent and their respective counsel (which representationsand acknowledges that the Trust, warranties the Trustee, the Agent and covenants shall survive their respective counsel are relying thereon), as at the Closing) date hereof and the Closing Date, that:
(a) if the Subscriber is an individual, the Subscriber is of the full age of majority in the jurisdiction in which this Subscription Agreement is executed and is legally competent to execute and deliver this Subscription Agreement, to perform all of its obligations hereunder, and to undertake all actions required of the Subscriber hereunder;
(b) if the Subscriber is not an individual, the Subscriber has the requisite power, authority, legal capacity and competence to enter into execute and execute deliver and be bound by this Subscription Agreement Agreement, to perform all of its obligations hereunder, and to take undertake all actions required pursuant hereto andof the Subscriber hereunder, and all necessary approvals of its directors, partners, shareholders, trustees or otherwise with respect to such matters have been given or obtained;
(c) if the Subscriber is a corporationbody corporate, it is partnership, unincorporated association or other entity, the Subscriber has been duly incorporated or created and is 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 or creation;
(d) this Subscription Agreement on behalf of has been duly and validly authorized, executed and delivered by, and constitutes a legal, valid, binding and enforceable obligation of, the Subscriber;
(ce) the entering into execution, delivery and performance by the Subscriber of this Subscription Agreement and the completion of the transactions contemplated hereby do not and will not result in the a violation of any of the terms and provisions of any law law, regulation, order or ruling applicable to the Subscriber, and do not and will not constitute a breach of or default under any of the Subscriber's constating documents (if the Subscriber is not an individual) or of any agreement, written agreement or oral, covenant to which the Subscriber may be is a party or by which the Subscriber it is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of confirms that the Subscriber enforceable against (and, if the Subscriber is not purchasing as principal, each beneficial purchaser for whom the Subscriber is acting):
(i) has such knowledge in accordance with financial and business affairs as to be capable of evaluating the merits and risks of its termsinvestment in the Trust Units;
(eii) is capable of assessing the proposed investment in the Trust Units as a result of the Subscriber's own experience or as a result of advice received from a person registered under applicable securities legislation;
(iii) is aware of the characteristics of the Trust Units and the risks relating to an investment therein; and
(iv) is able to bear the economic risk of loss of its investment in the Trust Units;
(g) the Subscriber acknowledges that no prospectus has been filed by the Trust with any securities commission or similar regulatory authority in any jurisdiction in connection with the issuance of the Trust Units, and the issuance of the Trust Units is exempted from the prospectus requirements available under the provisions of applicable securities laws, and as a result:
(i) the Subscriber is acquiring the Securities pursuant to an exemption restricted from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most using some of the civil remedies otherwise available under applicable securities legislation and laws;
(ii) the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to it under applicable securities legislation;laws; and
(fiii) the Subscriber Trust is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Personrelieved from certain obligations that would otherwise apply under applicable securities laws;
(h) other than the Offering Memorandum, the Subscriber has not received or been provided with, nor has it requested, nor does it have any need to receive, any prospectus or any other document (other than the annual financial statements, interim financial statements or any other document (excluding offering memoranda, prospectuses or other offering documents) the content of which is resident prescribed by statute or regulation) describing the business and affairs of the Trust, which has been prepared for delivery to and review by prospective purchasers in order to assist them in making an investment decision in respect of the jurisdiction set out under purchase of Trust Units pursuant to the heading “Name and Address of Subscriber” on the signature page of this Subscription AgreementOffering;
(i) the sale Subscriber confirms that neither the Trust, the Trustee, the Agent nor any of the Shares their representative directors, employees, officers, agents, representatives or affiliates, have made any representations (written or oral) to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) regarding the future value of the Trust Units;
(ii) that any person will resell or repurchase the Trust Units;
(iii) that any of the Securities;Trust Units will be listed on any stock exchange or traded on any market; or
(iiiv) that any person will refund the purchase price of any the Trust Units other than as provided in this Subscription Agreement;
(j) the Subscriber confirms that it has been advised to consult its own legal and financial advisors in its own jurisdiction of residence with respect to the suitability of the SecuritiesTrust Units as an investment for the Subscriber, the tax consequences of purchasing and dealing with the Trust Units, and the resale restrictions and "hold periods" to which the Trust Units are or may be subject under applicable securities legislation or stock exchange rules, and has not relied upon any statements made by or purporting to have been made on behalf of the Trust, the Trustee or the Agent with respect to such suitability, tax consequences, and resale restrictions;
(k) the Subscriber is resident in the jurisdiction indicated on the face page of this Subscription Agreement as the "Subscriber's Address" and the purchase by and sale to the Subscriber of the Trust Units, and any act, solicitation, conduct or negotiation directly or indirectly in furtherance of such purchase and sale (whether with or with respect to the Subscriber or any beneficial purchaser) has occurred only in such jurisdiction;
(l) the Subscriber acknowledges that it and/or the Trust, the Trustee or the Agent may be required to provide applicable securities regulatory authorities or stock exchanges with information concerning the identities of the beneficial purchasers of the Trust Units and the Subscriber agrees that, notwithstanding that the Subscriber may be purchasing the Trust Units as agent for an undisclosed principal, the Subscriber will provide to the Trust, the Trustee and the Agent, on request, particulars as to the identity of such undisclosed principal as may be required by the Trust, the Trustee or the Agent in order to comply with the foregoing;
(m) the Subscriber has not relied upon any verbal or written representation as to fact or otherwise made by or on behalf of the Trust, the Trustee or the Agent, other than pursuant to the Offering Memorandum delivered to the Subscriber and except as expressly set forth herein;
(n) unless the Subscriber satisfies Section 3(o) or Section 3(p) below, the Subscriber satisfies one of subsections (i), (ii), (iii) or (v) below:
(i) if the Subscriber is resident in or otherwise subject to the applicable securities laws of British Columbia, Alberta, Saskatchewan, Manitoba or Ontario, the Subscriber is purchasing the Trust Units as principal (or is deemed to be purchasing as principal) for its own account, not for the benefit of any other person, the Subscriber is an "accredited investor" as defined in National Instrument 45-106 entitled Prospectus Exemptions ("NI 45-106") (or, if applicable for Subscribers in Ontario, the corresponding categories for the definition of an "accredited investor" as defined in Section 73.3 of the Securities Act (Ontario)), which definitions are reproduced in Exhibit A to Schedule "A" attached hereto, the Subscriber was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106 and reproduced in Exhibit A to Schedule "A" hereto, the Subscriber is not a trust company or trust corporation registered under the laws of Xxxxxx Xxxxxx Island that is not registered or authorized under the Trust and Loan Companies Act (Canada) or under comparable legislation in another jurisdiction of Canada and the Subscriber has executed and delivered to the Trust and the Trustee a Representation Letter in the form attached hereto as Schedule "A" indicating that the Subscriber fits within one of the categories of "accredited investor" set forth in such definitions (including a duly completed and initialed copy of Exhibit A to Schedule "A") and, if the Subscriber is an individual described in paragraphs (j), (k), or (l) of the definition of "accredited investor" in Section 1.1 of NI 45-106, a duly completed and signed copy of Exhibit B to Schedule "A"; OR
(ii) if the Subscriber is relying on the offering memorandum exemption found in Section
(iii) as if the Subscriber is relying on the offering memorandum exemption found in Section 2.9 of NI 45-106 and is resident in or otherwise subject to the future price applicable securities laws of Alberta, Saskatchewan or value Ontario:
(A) it is purchasing the Trust Units as principal (or is deemed to be purchasing as principal) for its own account and not for the benefit of any other person;
(B) it was not created or used solely to purchase or hold securities in reliance on this Section 3(n)(iii);
(C) the acquisition cost of all securities acquired by the Subscriber who is an individual in the preceding 12 months does not exceed: (i) in the case of a Subscriber that is not an eligible investor, $10,000; (ii) in the case of a Subscriber that is an eligible investor, $30,000; (iii) in the case of a Subscriber that is an eligible investor and that has received advice from a portfolio manager, investment dealer or exempt market dealer that the investment is suitable, $100,000; and
(D) at the same time or before the Subscriber signs this Subscription Agreement, it has received or been provided with a copy of the Securities; or
Offering Memorandum, (ivE) that any two (2) copies of the Securities will be listed and posted Risk Acknowledgement in the form attached to this Subscription Agreement as Schedule "B", retaining one (1) copy of such Risk Acknowledgement for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.its records;
Appears in 2 contracts
Samples: Subscription Agreement, Subscription Agreement
Representations, Warranties and Covenants of the Subscriber. (a) 6.1. The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber It has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cb) the The entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if the Subscriber is a corporate entity, the documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the The Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) The Subscriber in accordance with its termshas received and carefully read this Subscription Agreement;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the The Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(if) the sale of The Subscriber is purchasing the Shares pursuant to the Subscriber as contemplated in this Subscription Agreement complies with exemptions from prospectus or is exempt from the equivalent requirements under applicable securities legislation of the jurisdiction of residence of the Subscriberlaws;
(jg) the The Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, only and not with a view toto resale or distribution;
(h) The Subscriber is aware that an investment in the Company is speculative and involves certain risks, or forincluding the possible loss of the entire investment;
(i) The Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Company;
(j) The Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, resale, distribution or fractionalisation thereof, (ii) has no need for liquidity in whole or in partthis investment, and no other person has a direct or indirect beneficial interest (iii) is able to bear the economic risks of an investment in such Sharesthe Shares for an indefinite period of time;
(k) The Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and the Questionnaire and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber is not an underwriter of, or dealer in, the common shares of shall promptly notify the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the The Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the The Subscriber acknowledges understands and agrees that the Subscriber has not acquired none of the Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S have been registered under the 0000 Xxx) 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in respect accordance with the provisions of Regulation S, pursuant to an effective registration statement under the Shares which would include any activities undertaken for the purpose of1933 Act, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Shares pursuant to the 1933 Act and any in each case only in accordance with applicable state and federal provincial securities laws or under an exemption from such registration requirements and as otherwise provided hereinlaws;
(n) By completing the Questionnaire, the Subscriber is representing and warranting that it is an "accredited investor" as that term is defined in Rule 501 of Regulation D of the 1933 Act;
(o) All information contained in the Questionnaire is complete and accurate and may be relied upon by the Company, and the Subscriber will notify the Company immediately of any material change in any such information occurring prior to the closing of the purchase of the Shares;
(p) The Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) The Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(r) The Subscriber is not aware of any advertisement of any of the Securities Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(os) no No person has made to the Subscriber any written or oral representations:
: (i) that any person will resell or repurchase any of the Securities;
Shares; (ii) that any person will refund the purchase price of any of the Securities;
Shares; (iii) as to the future price or value of any of the SecuritiesShares; or
or (iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system; and
(t) The Subscriber acknowledges and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Subscription Agreement: (i) a fully completed and executed Questionnaire in the form attached hereto as Exhibit A, and (ii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as a qualified investor.
Appears in 2 contracts
Samples: Debt Conversion Agreement (Wishart Enterprises LTD), Debt Conversion Agreement (Wishart Enterprises LTD)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ed) the Subscriber is not acquiring the Securities pursuant to an exemption from Shares for the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscriptionaccount or benefit of, anddirectly or indirectly, any U.S. Person, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationterm is defined in Regulation S;
(fe) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(gf) the Subscriber is not a U.S. Person, as that term is defined in Regulation S;
(hg) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ih) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(i) the Subscriber is acquiring the Shares for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Shares in the United States or to U.S. Persons, as that term is defined in Regulation S;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber an affiliate of any such underwriter of or dealer in the Shares, nor is it participating, pursuant to a contractual agreement or otherwise, in the any distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act;
(n) if the Subscriber is acquiring the Shares as a fiduciary or agent for one or more investor accounts, the Subscriber 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;
(o) the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that following the period of restriction from sale or transfer of the Shares described in subsection 1.4 of this Subscription, the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(np) in addition to the restrictions on sale or transfer in subsection 1.4 of this Subscription, the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(q) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(s) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(ot) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company Shares on any stock exchange or automated dealer quotation system; except that the Company’s Common Stock is currently approved for trading on the OTC Bulletin Board.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Global Energy Inc), Private Placement Subscription Agreement (Global Energy Inc)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1. The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber It has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cb) the The entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if the Subscriber is a corporate entity, the documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the The Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) The Subscriber in accordance with its termshas received and carefully read this Subscription Agreement;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the The Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(if) the sale of The Subscriber is purchasing the Shares pursuant to the Subscriber as contemplated in this Subscription Agreement complies with exemptions from prospectus or is exempt from the equivalent requirements under applicable securities legislation of the jurisdiction of residence of the Subscriberlaws;
(jg) the The Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, only and not with a view toto resale or distribution;
(h) The Subscriber is aware that an investment in the Company is speculative and involves certain risks, or forincluding the possible loss of the entire investment;
(i) The Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Company;
(j) The Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, resale, distribution or fractionalisation thereof, (ii) has no need for liquidity in whole or in partthis investment, and no other person has a direct or indirect beneficial interest (iii) is able to bear the economic risks of an investment in such Sharesthe Shares for an indefinite period of time;
(k) The Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and the Questionnaire and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber is not an underwriter of, or dealer in, the common shares of shall promptly notify the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the The Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) The Subscriber understands and agrees that the Shares are “restricted securities” as that term is defined in Rule 144 promulgated by the Commission under the Securities Act, the resale of the Shares is restricted by federal and state securities laws and, accordingly, the Shares must be held indefinitely unless their resale is subsequently registered under the Securities Act or an exemption from such registration is available for their resale;
(n) By completing the Questionnaire, the Subscriber acknowledges is representing and warranting that it is an "accredited investor" as that term is defined in Rule 501 of Regulation D of the Subscriber has not acquired the Shares as 1933 Act or a result of, and will not itself engage in, any “directed selling effortsnon-“U.S. person,” (as defined in Regulation S under the 0000 XxxSecurities Act;
(o) All information contained in the United States Questionnaire is complete and accurate and may be relied upon by the Company, and the Subscriber will notify the Company immediately of any material change in respect any such information occurring prior to the closing of the Shares which would include any activities undertaken for purchase of the purpose Shares;
(p) The Subscriber is not an underwriter of, or that could reasonably be expected dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to have the effect ofa contractual agreement or otherwise, conditioning the market in the United States for the resale distribution of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nq) the The Subscriber is not aware of any advertisement of any of the Securities Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(or) no person has made The Subscriber acknowledges and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Subscriber any written or oral representations:
Company, along with an executed copy of this Subscription Agreement: (i) that any person will resell or repurchase any of a fully completed and executed Questionnaire in the Securities;
form attached hereto as Exhibit A, and (ii) such other supporting documentation that any person will refund the purchase price Company or its legal counsel may request to establish the Subscriber's qualification as a qualified investor.
(s) The Subscriber is the lawful owner of any each listed component of the Securities;
(iii) Debt, as specified on Exhibit 1 hereto, either originally or by lawful assignment thereof, and has the full legal authority to the future price release, convert, or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities otherwise discharge all obligations of the Company on any stock exchange or automated dealer quotation systemwith regard to the Debt and all individually listed components thereof.
Appears in 2 contracts
Samples: Debt Conversion Agreement (Cross Click Media Inc.), Debt Conversion Agreement (Cross Click Media Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) the Subscriber has the requisite knowledge and experience in accordance with its termsfinancial and business matters as to be capable of evaluating the merits and risks of the investment in the Shares and the Company, and the Subscriber is providing evidence of such knowledge and experience in these matters through the information requested in the Questionnaires;
(e) all information contained in the Subscriber Questionnaires is acquiring complete and accurate and may be relied upon by the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationCompany;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(jg) the Subscriber is outside acquiring the Shares for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Shares in the United States when receiving and executing this Subscription Agreement and or to U.S. Persons;
(h) the Subscriber is acquiring the Shares as principal for the Subscriber’s own accountaccount (except for the circumstances outlined in paragraph 6.1(j)), for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(ki) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(lj) if the Subscriber is acquiring the Shares as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber (i) is able has sole investment discretion with respect to fend for him/her/itself in each such account and it has full power to make the Subscription; foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) has such knowledge the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an “Accredited Investor”, as the term is defined in Regulation D under the 1933 Act and experience in business matters as to be capable of evaluating Multilateral Instrument 45-103 adopted by the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentBritish Columbia Securities Commission;
(mk) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) 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 Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nl) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(om) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTC Bulletin Board.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Digital Youth Network Corp.), Private Placement Subscription Agreement (Digital Youth Network Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall will survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) the Subscriber in accordance with its termsis not a U.S. Person;
(e) the Subscriber is not acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(hf) the Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(ig) the sale of the Shares Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(jh) the Subscriber is acquiring the Securities for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Securities in the United States or to U.S. Persons;
(i) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own accountaccount (except for the circumstances outlined in paragraph 6.1(l)), for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesSecurities;
(kj) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities;
(lk) the Subscriber Subscriber: (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(l) if the Subscriber is acquiring the Securities as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber 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
(ii) the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an "Accredited Investor", as the term is defined in Regulation D under the 1933 Act;
(m) the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result of, and will not itself engage in, any “"directed selling efforts” " (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; andSecurities;
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system;
(p) the Subscriber:
(i) is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the Subscriber is resident (the "International Jurisdiction") which would apply to the acquisition of the Units,
(ii) is purchasing the Units pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Subscriber is permitted to purchase the Units under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions,
(iii) acknowledges that the applicable securities laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of any of the Securities, and
(iv) represents and warrants that the acquisition of the Units by the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or
B. any continuous disclosure reporting obligation of the Company in the International Jurisdiction, and the Subscriber will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Company, acting reasonably; and
(q) the Subscriber acknowledges that the Escrowed Securities (as defined below in Section 10.1) will be subject to the following terms, namely:
(i) if the Company achieves one of the Milestones (as defined below) within eight months from the date on which the Company moves into its research facility after the closing of the transactions contemplated by an asset purchase agreement made between the Company, Indigoleaf Associates Ltd. and Xx. Xxxxx Xxxxxxx, dated January 10, 2008 (the "Closing"), then the Subscriber, on a pro rata basis with the other subscribers to the Offering, will exercise Warrants for at least $950,000 (i.e. at least 760,000 warrants at $1.25 per common share) within 30 days after receipt of the Company's written notice that it achieved such a Milestone (but not earlier than 90 days after the Closing). Provided that if the price of the Shares, as quoted on the NASDAQ Over-the-Counter Bulletin Board (or other exchange on which the shares are traded) on the date the Company achieves a Milestone, is less than $1.25 per share, then the directors of the Company may, in their sole discretion, allow the subscribers to the Offering to purchase, on a pro rata basis, Shares at the then market price, in the aggregate amount of $950,000 without penalty as provided by Section 6.1(q)(ii) hereof. For the purposed hereof, each of the following will be deemed a "Milestone":
A. sequencing of the variable region of the novel melanoma Mab and filing a patent for that Mab;
B. creating novel Mabs against breast cancer which react with at least three different breast cancer specimen (tissue or sera) and do not cross react with a negative control (e.g. normal tissue or serum); or
C. creating novel Mabs against colorectal cancer which react with at least three different colorectal cancer specimen (tissue or sera) and do not cross react with a negative control (e.g. normal tissue or serum).
(ii) if the Subscriber defaults on its commitment to exercise its portion of the Warrants pursuant to the provisions of Section 6.1(q)(i) hereof, then, without limiting the remedies of the Company for such breach, all of the Subscriber's Warrants held in escrow pursuant to Section 10.1 hereof will immediately expire, and the Subscriber's Shares held in escrow pursuant to Section 10.1hereof above will be immediately transferred to the Company.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Mabcure Inc.), Private Placement Subscription Agreement (Mabcure Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriberhereto;
(c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsSubscriber;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration has received and prospectus requirements of applicable securities legislation in all jurisdictions relevant to carefully read this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationSubscription Agreement;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(g) the Subscriber:
(i) the sale of the Shares to the Subscriber is knowledgeable of, or has been independently advised as contemplated in this Subscription Agreement complies with or is exempt from to, the applicable securities legislation laws of the securities regulators having application in the jurisdiction of residence in which the Subscriber is resident (the “International Jurisdiction”) which would apply to the acquisition of the SubscriberSecurities,
(ii) is purchasing the Securities pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Subscriber is permitted to purchase the Securities under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions,
(iii) acknowledges that the applicable securities laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of any of the Securities,
(iv) represents and warrants that the acquisition of the Securities by the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or
B. any continuous disclosure reporting obligation of the Company in the International Jurisdiction, and
(v) the Subscriber will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Company, acting reasonably;
(jh) the Subscriber is outside purchasing the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, for investment purposes only, only and not with a view to, or for, resale, distribution or fractionalisation fractionalization thereof, in whole or in part, and, in particular, it has no intention to distribute either directly or indirectly any of the Securities in the United States or to U.S. Persons;
(i) the Subscriber is aware that an investment in the Company is speculative and no other person involves certain risks, including the possible loss of the entire investment;
(j) the Subscriber has a direct or indirect beneficial interest made an independent examination and investigation of an investment in such Sharesthe Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(k) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is not able to bear the economic risks of an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, investment in the distribution Securities for an indefinite period of the Sharestime;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and the Questionnaire and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mn) the Subscriber is outside the United States when receiving and executing this Subscription Agreement;
(o) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of the period specified in Regulation S (such period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(p) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(q) the Subscriber acknowledges that the Subscriber it has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nr) the Subscriber understands and agrees that none of the Securities have been registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Securities;
(t) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(u) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ov) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for the purpose of the Subscription Agreement includes any person in the United States.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Kore Nutrition, Inc.), Private Placement Subscription Agreement (Kore Nutrition, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company Issuer (which representations, warranties and covenants shall survive the Closing) that:
(a) unless the Subscriber is a U.S. Purchaser and has concurrently herewith completed, executed and delivered Exhibit B, the Subscriber is not in the United States, the Subscriber (and any person acting on its behalf) did not receive an offer to purchase the Shares in the United States, and the individuals making the order to purchase the Shares and executing and delivering this Agreement on behalf of the Subscriber were not in the United States when the order was placed and this Agreement was executed and delivered;
(b) no "bad actor" disqualifying event described in Rule 506(d)(1)(i)-(viii) of the 1933 Act (a "Disqualification Event") is applicable to the Subscriber, except for a Disqualification Event as to which Rule 506(d)(2)(ii-iv) or (d)(3), is applicable;
(c) the Subscriber is knowledgeable of, or has been independently advised as to, the applicable laws of the securities regulators having application in the jurisdiction in which the Subscriber is resident which would apply to the offer and sale of the Shares, including any restrictions with respect to the trading in, and the restricted period or statutory hold period applicable to the Shares imposed by the applicable securities laws of the jurisdiction in which the Subscriber resides or to which such Subscriber is subject;
(d) the Subscriber is purchasing the Shares pursuant to an exemption from the prospectus requirement or equivalent requirements under applicable laws or, if such is not applicable, the Subscriber is permitted to purchase the Shares under the applicable laws of the securities regulators in the jurisdiction in which the Subscriber resides without the need to rely on any exemption;
(e) if the Subscriber is not a resident in Canada or the United States;
(i) the applicable laws of the authorities in the jurisdiction in which the Subscriber resides do not require the Issuer to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the jurisdiction in which the Purchaser resides in connection with the offer, issue, sale or resale of any of the Shares;
(ii) the purchase of the Shares by the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
B. any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and
(iii) the Subscriber will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the jurisdiction in which the Purchaser resides which will confirm the matters referred to in subparagraphs (i), and (ii) above to the satisfaction of the Issuer, acting reasonably;
(f) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cg) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if applicable, the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dh) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in has received and carefully read this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the SubscriberAgreement;
(j) the Subscriber is outside aware that an investment in the United States when receiving Issuer is speculative and executing this Subscription Agreement and is acquiring involves certain risks, including the Shares as principal for possible loss of the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesentire investment;
(k) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Issuer and agrees that the Issuer will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Issuer;
(l) the Subscriber is not an underwriter of, or dealer in, the common shares any of the CompanyShares, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable Shares or any of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentthem;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;Shares,
(ii) that any person will refund the purchase price of any of the Securities;Shares, or
(iii) as to the future price or value of any of the SecuritiesShares; orand
(ivn) the Subscriber acknowledges and agrees that any the Issuer shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Issuer, along with an executed copy of this Agreement:
(i) the Securities will be listed and posted for trading on any stock exchange Accredited Investor Certificate attached hereto as Exhibit A, if applicable;
(ii) the United States Purchaser Questionnaire attached hereto as Exhibit B, if applicable; and
(iii) such other supporting documentation that the Issuer or automated dealer quotation system or that application has been made its legal counsel may request to list and post any of establish the Securities of the Company on any stock exchange or automated dealer quotation systemSubscriber's qualification as a qualified investor.
Appears in 2 contracts
Samples: Subscription Agreement (Naqi Logix Inc.), Subscription Agreement (Naqi Logix Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) ), and acknowledges that the Company is relying thereon, that:
(a) the Subscriber is not a U.S. Person as that term is defined in Regulation S;
(b) the Subscriber is not acquiring the Note for the account or benefit of, directly or indirectly, any U. S. Person as that term is defmed in Regulation S;
(c) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 ofthe Subscriber;
(ce) ifthe Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and upon acceptance thereof by the Company it will constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(eg) the Subscriber is acquiring the Securities pursuant to an exemption from the registration as principal for its own account for investment purposes only and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account of any other person and not for distribution, assignment or benefit ofresale to others, directly and no other person has a direct or indirectlyindirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any U.S. Person;
(g) the Subscriber is not a U.S. Personother person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Note as principal for the Subscriber’s 's own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(iii) the Subscriber is aware that any person will refund an investment in the purchase price of any Company is speculative and involves certain risks, including the possible loss of the Securities;
(iii) as to entire investment and it has carefully read and considered the future price or value matters set forth under the heading "Risk Factors" appearing in the Company's Forms lOoK, lO-Q, 8-K and any other filings filed with the SEC; the Subscriber has made an independent examination and investigation of any of the Securities; or
(iv) that any of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be listed and posted responsible in any way whatsoever for trading on any stock exchange or automated dealer quotation system or that application has been made the Subscriber's decision to list and post any of invest in the Securities of and the Company on any stock exchange or automated dealer quotation system.Company;
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. (a) The By executing this Subscription Agreement, the Subscriber hereby represents and represents, warrants to and covenants with to the Company Corporation (which representations, warranties and covenants shall survive acknowledges that the ClosingCorporation and its counsel is relying thereon) that:
(a) if the Subscriber is an individual, the Subscriber is of the full age of majority in the jurisdiction in which this Subscription Agreement is executed and is legally competent to execute and deliver this Subscription Agreement and all other agreements, instruments and other documents contemplated hereby and that it will perform all of its obligations hereunder and thereunder, undertake all actions required of the Subscriber hereunder and thereunder;
(b) if the Subscriber is not an individual: (i) it has been duly incorporated, formed or created and is valid and subsisting under the laws of the jurisdiction of its incorporation, formation, or creation; (ii) has the requisite power, authority, legal capacity and competence to enter into execute and execute deliver this Subscription Agreement and all other agreements, instruments and other documents contemplated hereby and to take perform all of its obligations hereunder and thereunder, and to undertake all actions required pursuant hereto and, if of the Subscriber is a corporation, it is duly incorporated hereunder and validly subsisting under the laws of its jurisdiction of incorporation thereunder; and (iii) all necessary approvals by of its directors, shareholders and others partners, shareholders, trustees or otherwise with respect to such matters that have been obtained to authorize execution and performance of given or obtained;
(c) this Subscription Agreement on behalf has been duly and validly authorized, executed and delivered by, and constitutes a legal, valid, binding and enforceable obligation of the Subscriber;
(cd) the entering into execution, delivery and performance by the Subscriber of this Subscription Agreement and the completion of the transactions contemplated hereby do not and will not result in the a violation of any of the terms and provisions of any law law, regulation, order or ruling applicable to the Subscriber, and do not and will not constitute a breach of or default under any of the Subscriber's constating documents (if the Subscriber is not an individual) or of any agreement, written or oral, agreement to which the Subscriber may be is a party or by which the Subscriber it is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;:
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge in financial and experience in business matters affairs as to be capable of evaluating the merits and risks of its prospective investment in the Preferred Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mii) is capable of assessing the Subscriber acknowledges that the Subscriber 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 0000 Xxx) proposed investment in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Preferred Shares as a result of any form the Subscriber's own experience or as a result of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no advice received from a person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securitiesregistered under applicable securities legislation;
(iii) as to the future price or value of any is aware of the Securitiescharacteristics of the Preferred Shares and the risks relating to an investment therein; orand
(iv) that any is able to bear the economic risk of loss of its investment in the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.Preferred Shares;
Appears in 1 contract
Samples: Subscription Agreement for Class B Preferred Shares
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company and the Agent (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber and any beneficial purchaser for whom it is acting are resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on page 11 of this Subscription;
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsSubscriber;
(e) the Subscriber is acquiring it understands and agrees that none of the Securities pursuant to an exemption from has been registered under the registration 1933 Act, and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will they may not be entitled to use most of the civil remedies available sold under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationU.S. law except as permitted in paragraph 6.1(g) below;
(f) it is purchasing the Subscriber Securities for its own account or for an account with respect to which it exercises sole investment discretion, and that it or such account is not an accredited investor as that term is defined in Rule 501 under the 1933 Act (an "Institutional Accredited Investor") acquiring the Shares Securities for the account or benefit of, directly or indirectly, any U.S. Personinvestment purposes and not for distribution;
(g) the Subscriber is acknowledges that any resale of the Securities will be subject to resale restrictions contained in the securities legislation applicable to the Subscriber or any proposed transferee. The Subscriber acknowledges that the Securities have not a U.S. Personbeen registered under the 1933 Act or the securities laws of any state of the United States and that the Company does not intend to register same under the 1933 Act, or the securities laws of any such state and has no obligation to do so. The Securities may not be offered or sold in the United States unless registered in accordance with federal securities laws and all applicable state securities laws or exemptions from such registration requirements are available;
(h) it understands and agrees that the Subscriber is resident notification requirement referred to in paragraph 6.1(g) above will be satisfied by virtue of the jurisdiction fact that the legend set out under the heading “Name and Address of Subscriber” below will be placed on the signature page of this Subscription Agreement;Shares unless otherwise agreed by the Company: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED TO A U.S. PERSON EXCEPT AFTER THE EXPIRY OF A 40 DAY DISTRIBUTION COMPLIANCE PERIOD AS PRESCRIBED IN REGULATION S."
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber it (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mj) the Subscriber acknowledges it understands and agrees that the Subscriber has legend referred to in paragraph 6.1(h) above shall not acquired be removed from any Shares purchased by it pursuant to this Subscription unless there is delivered to the Shares as a result ofCompany such satisfactory evidence, and will not itself engage in, any “directed selling efforts” (as defined which may include an opinion of counsel licensed to practice law in Regulation S under one of the 0000 Xxx) in states of the United States in respect of America, as may be reasonably required by 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 the Shares; provided, howeverCompany, that such Shares are not "restricted" within the Subscriber may sell or otherwise dispose meaning of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided hereinRule 144;
(nk) if it is acquiring the Securities as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgments, representations and agreements on behalf of such account;
(l) it understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgments, representations and agreements contained in sections 5 and 6 hereof and agrees that if any of such acknowledgments, representations and agreements are no longer accurate or have been breached, it shall promptly notify the Company;
(m) the Subscriber is not aware of any advertisement of any of the Securities;
(n) in purchasing the Securities the Subscriber has complied with all securities laws of its jurisdiction of residence and warrants that the sale of the Securities by the Company is not acquiring in full compliance with such laws, and the Shares as a result Subscriber will make all filings necessary in such jurisdiction to ensure the Company complies with securities laws of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingsuch jurisdiction; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;; or
(iii) as to the future price or value of any of the Securities; or.
(iv) that any 6.2 In this Subscription, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S and for the purpose of the Securities will be listed and posted for trading on Subscription includes any stock exchange or automated dealer quotation system or that application has been made to list and post any of person in the Securities of the Company on any stock exchange or automated dealer quotation systemUnited States.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Smartire Systems Inc)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is not acquiring the Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(c) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. PersonSubscriber;
(g) the Subscriber is acquiring the Securities as principal for its own account for investment purposes only and not for the account of any other person and not for distribution, assignment or resale to others, and no other person has a U.S. Persondirect or indirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any other person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(i) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Form 10-KSB and any other filings filed with the SEC;
(j) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(k) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(n) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(o) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities;
(lp) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Securities;
(q) the Subscriber (i) is able to fend for him/her/itself understands and agrees that none of the Securities have been or will be registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the Subscription; United States or, directly or indirectly, to U.S. Persons, as that term is defined in Regulation S under the 1933 Act (ii) has such knowledge “Regulation S”), except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment each case only in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentaccordance with applicable state securities laws;
(mr) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of a period of one year after the date of original issuance of the Securities (the one year period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state securities laws;
(s) the Subscriber acknowledges that the Subscriber it has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nt) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(u) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(v) the Subscriber (i) is able to fend for itself in the Subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Securities and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(w) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ox) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Subscription Agreement (Global Innovative Systems Inc)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriberhereto;
(c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsSubscriber;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration has received and prospectus requirements of applicable securities legislation in all jurisdictions relevant to carefully read this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationSubscription Agreement;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(g) the Subscriber:
(i) the sale of the Shares to the Subscriber is knowledgeable of, or has been independently advised as contemplated in this Subscription Agreement complies with or is exempt from to, the applicable securities legislation laws of the securities regulators having application in the jurisdiction of residence in which the Subscriber is resident (the “International Jurisdiction”) which would apply to the acquisition of the SubscriberSecurities,
(ii) is purchasing the Securities pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Subscriber is permitted to purchase the Securities under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions,
(iii) acknowledges that the applicable securities laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of any of the Securities,
(iv) represents and warrants that the acquisition of the Securities by the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or
B. any continuous disclosure reporting obligation of the Company in the International Jurisdiction, and
(v) the Subscriber will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Company, acting reasonably;
(jh) the Subscriber is outside purchasing the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, for investment purposes only, only and not with a view to, or for, resale, distribution or fractionalisation fractionalization thereof, in whole or in part, and, in particular, it has no intention to distribute either directly or indirectly any of the Securities in the United States or to U.S. Persons;
(i) the Subscriber is aware that an investment in the Company is speculative and no other person involves certain risks, including the possible loss of the entire investment;
(j) the Subscriber has a direct or indirect beneficial interest made an independent examination and investigation of an investment in such Sharesthe Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(k) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is not able to bear the economic risks of an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, investment in the distribution Securities for an indefinite period of the Sharestime;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mn) the Subscriber is outside the United States when receiving and executing this Subscription Agreement;
(o) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of the period specified in Regulation S (such period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(p) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(q) the Subscriber acknowledges that the Subscriber it has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 1000 Xxx) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nr) the Subscriber understands and agrees that none of the Securities have been registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Securities;
(t) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(u) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ov) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for the purpose of the Subscription Agreement includes any person in the United States.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Blue Sphere Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) the Subscriber is not a U.S. Person, as that term is defined in accordance with its termsRegulation S;
(e) the Subscriber is not acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person, as that term is defined in Regulation S;
(f) the Subscriber is an Accredited Investor (as defined in National Instrument 45-106) and the Subscriber agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Agreement:
(i) a fully completed and executed Questionnaire in the form attached as Exhibit A hereto; and
(ii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as an Accredited Investor;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ih) the sale of the Shares Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(ji) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s 's own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesSecurities;
(j) the decision to execute this Agreement and acquire the Units hereunder has not been based upon any oral or written representation as to fact or otherwise made by or on behalf of the Company;
(k) no other person has a direct or indirect beneficial interest in such Securities, and the Subscriber has not subdivided its interest in the Securities with any other person;
(l) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Form 10-KSB and any other filings filed with the SEC;
(m) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(n) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(o) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(p) the Company is entitled to rely on the representations and warranties of the Subscriber contained in this Agreement and the Questionnaire and the Subscriber will indemnify and hold harmless the Company and, where applicable, its directors, officers, employees, agents, advisors and shareholders, from and against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any representation or warranty of the Subscriber contained herein, the Questionnaire or in any document furnished by the Subscriber to the Company in connection herewith being untrue in any material respect or any breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(q) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(r) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(s) it is not an underwriter of, or dealer innor is affiliated with any underwriter of, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities or any of them;
(lt) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable not a registered broker or dealer, nor is it an affiliate of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentany registered broker or dealer;
(mu) the Subscriber understands and agrees that none of the Securities have been or will be registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons, as that term is defined in Regulation S, except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state securities laws;
(v) the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 XxxS) in the United States in respect of the Shares Securities 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 the SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of the Shares and the Underlying Shares pursuant to registration of the Shares and the Underlying Shares pursuant to the 1933 Act and any applicable state and federal provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nw) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of a period of six months after the date of original issuance of the Securities (such period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(x) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(y) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(z) the Subscriber is not aware of any advertisement of of, or any general solicitation in respect of, any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingSecurities; and
(oaa) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system; except that the Company’s Common Stock is currently approved for trading on the U.S. Over the Counter Bulletin Board.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (California Oil & Gas Corp)
Representations, Warranties and Covenants of the Subscriber. (a) 5.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the ClosingClosing Date) that:
(a) the Subscriber is resident in the jurisdiction set out on page 2 of this Subscription Agreement;
(b) the Subscriber is acquiring the Shares as principal for investment only and not with a view to, or for, resale, distribution or fractionalization thereof, in whole or in part;
(c) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if applicable, the Subscriber constating documents of, the Subscriber, or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. PersonSubscriber;
(g) the Subscriber is not a U.S. Personhas received and carefully read this Subscription Agreement;
(h) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is resident able to bear the economic risks of an investment in the jurisdiction set out under Shares for an indefinite period of time, and can afford the heading “Name and Address complete loss of Subscriber” on the signature page of this Subscription Agreementsuch investment;
(i) the sale Subscriber has the requisite knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Shares to and the Company, and the Subscriber as contemplated is providing evidence of knowledge and experience in this Subscription Agreement complies with or is exempt from these matters through the applicable securities legislation of information requested in the jurisdiction of residence of the SubscriberQuestionnaires;
(j) the Subscriber is outside understands and agrees that the United States when receiving Company and executing others will rely upon the truth and accuracy of the acknowledgements, representations, warranties, covenants and agreements contained in this Subscription Agreement and the Questionnaires, and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(k) the Subscriber is acquiring aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the investment;
(l) the Subscriber is purchasing the Shares as principal for the Subscriber’s its own account, account for investment purposes only, only and not with a view tofor the account of any other person and not for distribution, assignment or for, resale, distribution or fractionalisation thereof, in whole or in partresale to others, and no other person has a direct or indirect beneficial interest in is such Shares, and the Subscriber has not subdivided his interest in the Shares with any other person;
(km) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company's common stock, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(ln) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge made an independent examination and experience in business matters as to be capable investigation of evaluating the merits and risks of its prospective an investment in the Shares; Shares and (iii) the Company and has depended on the ability to bear the economic risks advice of its prospective investment legal and can afford financial advisors and agrees that the complete loss of such investmentCompany will not be responsible in anyway whatsoever for the Subscriber's decision to invest in the Shares and the Company;
(mo) if the Subscriber acknowledges that the Subscriber has not acquired is acquiring the Shares as a result offiduciary or agent for one or more investor accounts, the Subscriber has sole investment discretion with respect to each such account, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose has full power to make the foregoing acknowledgements, representations and agreements on behalf of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided hereinaccount;
(np) the Subscriber is not aware of any advertisement of any of the Securities Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(oq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;Shares,
(ii) that any person will refund the purchase price of any of the Securities;Shares,
(iii) as to the future price or value of any of the Securities; Shares, or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the shares of the Company's common stock on the OTC Bulletin Board; and
(r) the Subscriber acknowledges and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Subscription Agreement:
(i) a fully completed and executed Questionnaires in the forms attached hereto as Schedule A and Schedule B, and
(ii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as a qualified investor.
5.2 In this Subscription Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for the purpose of the Subscription Agreement includes any person in the United States.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Megawest Energy Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representationsrepresents, warranties and covenants shall survive with and to the ClosingCompany as follows:
(a) that:Subscriber is at least eighteen (18) years of age and is under no legal disability nor is Subscriber subject to any order which would prevent or interfere with its execution or delivery of this Agreement.
(b) Subscriber has received a copy of the Prospectus dated [___________], 20[__], or the Company has made available to the Subscriber has an electronic version thereof as filed by the legal capacity and competence Company with the Commission, prior to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if or in connection with the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;Agreement.
(c) The Subscriber acknowledges and agrees that the entering into of subscription hereunder is irrevocable, except as required by applicable law, and that this Subscription Agreement and shall survive the transactions contemplated hereby do not result in the violation of any death or disability of the terms undersigned and provisions of any law applicable shall be binding upon and inure to the Subscriber or benefit of any agreementhis heirs, written or oralexecutors, to which the Subscriber may be a party or by which the Subscriber is or may be bound;administrators, successors, legal representatives and permitted assigns.
(d) The Subscriber understands that the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and subscription made hereby is not binding agreement of upon the Subscriber enforceable against Company until accepted by the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, andCompany, as a consequence, evidenced by the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided delivery to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares Company’s signed counterpart to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation executed by a duly authorized officer of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes onlyCompany, and not with a view to, that the Company has the right to accept or for, resale, distribution or fractionalisation thereofreject this subscription, in whole or in part, in its sole and complete discretion.
(e) The Subscriber understands that (i) if this subscription is rejected in whole, the Company shall return to Subscriber, without interest, the payment tendered by Subscriber for the Shares, in which case the Company and Subscriber shall have no further obligation to each other person hereunder or (ii) in the event of a partial rejection of this subscription, Subscriber’s payment will be returned to Subscriber, without interest, whereupon Subscriber agrees to deliver a new payment in the amount of the purchase price for the number of Shares to be purchased hereunder following a partial rejection of this subscription.
(f) Except as set forth in the Prospectus, no representations or warranties, oral or otherwise, have been made to Subscriber by the Company or any other person, whether or not associated with the Company or the Offering. In entering into this transaction, Subscriber is not relying upon any information, other than that contained in the Prospectus and the exhibits thereto and the results of any independent investigation conducted by Subscriber at Subscriber’s sole discretion and judgment.
(g) Subscriber is aware that the purchase of the Shares is a speculative investment involving a high degree of risk and that there is no guarantee that the Subscriber will realize any gain from this investment and that the Subscriber could lose the total amount of the Subscriber's investment.
(h) Subscriber understands that no federal or state agency has made any finding or determination regarding the fairness of this Offering, or any recommendation or endorsement of the Shares or the Offering.
(i) FOR PARTNERSHIPS, CORPORATIONS, TRUSTS, OR OTHER ENTITIES ONLY: If the Subscriber is a direct partnership, corporation, trust, or indirect beneficial interest other entity, (i) the Subscriber has the full power and authority to execute this Agreement on behalf of such entity and to make the representations and warranties made herein on its behalf, and (ii) this investment in the Company has been affirmatively authorized, if required, by the governing board of such Shares;entity and is not prohibited by the governing documents of the entity.
(j) The address shown under the Subscriber's signature at the end of this Agreement is the Subscriber's principal residence if he or she is an individual, or its principal business address if a corporation or other entity.
(k) All information herein concerning the Subscriber is not an underwriter of, or dealer in, the common shares correct and complete as of the Company, nor is date this Agreement was executed by the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation systemSubscriber.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) ), and acknowledges that the Company is relying thereon, that:
(a) the Subscriber is not a U.S. Person as that term is defined in Regulation S;
(b) the Subscriber is not acquiring the Note for the account or benefit of, directly or indirectly, any U.S. Person as that term is defined in Regulation S;
(c) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and upon acceptance thereof by the Company it will constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(eg) the Subscriber is acquiring the Securities pursuant to an exemption from the registration as principal for its own account for investment purposes only and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account of any other person and not for distribution, assignment or benefit ofresale to others, directly and no other person has a direct or indirectlyindirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any U.S. Person;
(g) the Subscriber is not a U.S. Personother person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Note as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(i) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Forms 00-X, 00-X, 0-X and any other filings filed with the SEC;
(j) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(k) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(n) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(o) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company’s Shares, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the Shares;
(lp) the Subscriber is not an underwriter of, or dealer in, the Company’s Shares, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the Securities;
(q) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of restricted period after the date of original issuance of the Securities (the twelve month period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state securities laws;
(r) the Subscriber agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(s) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) 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 SharesSecurities and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mt) the Subscriber acknowledges that will indemnify the Subscriber has not acquired the Shares as a result ofCompany against, and will not itself engage inhold the Company and, where applicable, its respective directors, officers, employees, agents, advisors and shareholders harmless from, any “directed selling efforts” and all loss, liability, claim, damage and expense whatsoever (as defined including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in Regulation S under the 0000 Xxxinvestigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) in the United States in respect arising out of or based upon any representation or warranty of the Shares which would include Subscriber contained herein or in 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 the Shares; provided, however, that document furnished by the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and Company in connection herewith being untrue in any applicable state and federal securities laws material respect or under an exemption from such registration requirements and as otherwise provided hereinany breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(nu) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ov) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently the Company’s common shares are quoted on the over-the-counter market operated by the Over-The-Counter Bulletin Board operated by FINRA.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Subscription Agreement (Vapor Hub International Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the sale of the Securities to the Subscriber as contemplated by the delivery of this Subscription Agreement, the acceptance of it by the Company and the issuance of the Securities to the Subscriber complies with all applicable laws of the Subscriber’s jurisdiction of residence or domicile and will not cause the Company to become subject to or comply with any disclosure, prospectus or reporting requirements under any such applicable laws;
(b) the Subscriber:
i. is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators in the U. S. which would apply to the acquisition of the Securities;
ii. the Subscriber is purchasing the Securities pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Subscriber is permitted to purchase the Securities under the applicable securities laws of the securities regulators in the U. S.;
iii. he purchase of the Securities by the Subscriber assumes that:
(a) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the investment;
(b) the Subscriber has received and carefully read this Subscription Agreement;
(c) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in anyway whatsoever for the Subscriber's decision to invest in the Securities and the Company;
(d) the Subscriber has the requisite knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities and the Company;
(e) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement, and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, it shall promptly notify the Company;
(f) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cg) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if applicable, the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dh) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale Subscriber understands and agrees that none of the Shares to Securities have been registered under the Subscriber as contemplated in this Subscription Agreement complies with 1933 Act, or is exempt from the applicable under any state securities legislation or “blue sky” laws of any state of the jurisdiction United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of residence Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Subscriber1933 Act;
(j) the Subscriber is outside understands and agrees that the United States when receiving and executing this Subscription Agreement and is acquiring Company will refuse to register any transfer of the Shares as principal for Securities not made in accordance with the Subscriber’s own accountprovisions of Regulation S, for investment purposes only, and not with a view to, pursuant to an effective registration statement under the 1933 Act or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharespursuant to an available exemption from the registration requirements of the 1933 Act;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. (a) 5.1 The Subscriber hereby represents and warrants to and covenants with the Company Issuer (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person and is executing this Agreement outside of the U.S.;
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if applicable, the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration has received and prospectus requirements of applicable securities legislation in all jurisdictions relevant to carefully read this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationAgreement;
(f) the Subscriber is not acquiring aware that an investment in the Shares for Issuer is speculative and involves certain risks (including those risks disclosed in the account or benefit ofPublic Record), directly or indirectly, any U.S. Personincluding the possible loss of the entire investment;
(g) the Subscriber is has made an independent examination and investigation of an investment in the Securities and the Issuer and agrees that the Issuer will not a U.S. Personbe responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Issuer;
(h) all information contained in the Questionnaire is complete and accurate and may be relied upon by the Issuer, and the Subscriber is resident will notify the Issuer immediately of any material change in any such information occurring prior to the jurisdiction set out under closing of the heading “Name and Address issuance of Subscriber” on the signature page of this Subscription AgreementWarrants;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal Warrants for the Subscriber’s its own account, account for investment purposes only, only and not with a view tofor the account of any other person and not for distribution, assignment or for, resale, distribution or fractionalisation thereof, in whole or in partresale to others, and no other person has a direct or indirect beneficial interest is such Securities, and the Subscriber has not subdivided his interest in such Sharesthe Securities with any other person;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(lj) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(k) the Subscriber is not an underwriter of, or dealer in, any of the Securities, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Securities or any of them;
(l) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Securities as a result of any form of general solicitation or general advertising, including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media, or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(m) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities,
(ii) that any person will refund the purchase price of any of the Securities, or
(iii) as to the future price or value of any of the Securities;
(n) the Subscriber understands and agrees that none of the Securities have been registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state, provincial and foreign securities laws;
(o) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of the period specified in Regulation S (such period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(p) the Subscriber acknowledges that the Subscriber it has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 1000 Xxx) in the United States in respect of any of the Shares Warrants 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nq) hedging transactions involving the Securities may not be conducted unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable securities laws;
(r) the Subscriber is acknowledges and agrees that the Issuer shall not aware of any advertisement of any of consider the Securities and is not acquiring Subscriber’s Subscription for acceptance unless the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made undersigned provides to the Subscriber any written or oral representationsIssuer, along with an executed copy of this Agreement:
(i) that any person will resell or repurchase any of a fully completed and executed Questionnaire in the Securities;form attached hereto as Exhibit “A”, and
(ii) such other supporting documentation that the Issuer or its legal counsel may request to establish the Subscriber’s qualification as a qualified investor; and
(s) by completing the Questionnaire, the Subscriber is representing and warranting that the Subscriber satisfies one of the categories of registration and prospectus exemptions provided in National Instrument 45-106 – Prospectus and Registration Exemptions (“NI 45-106”) adopted by the Canadian Securities Administrators.
5.2 In this Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for the purpose of the Agreement includes any person will refund in the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation systemUnited States.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Search by HEADLINES.COM Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is not acquiring the Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(c) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber is an Accredited Investor (as defined in National Instrument 45-106) and the Subscriber agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Agreement:
(i) a fully completed and executed Questionnaire in the form attached as Exhibit A hereto; and
(ii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as an Accredited Investor;
(g) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. PersonSubscriber;
(h) the Subscriber is resident acquiring the Securities as principal for its own account for investment purposes only and not for the account of any other person and not for distribution, assignment or resale to others, and no other person has a direct or indirect beneficial interest in such Securities, and it has not subdivided its interest in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription AgreementSecurities with any other person;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(j) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Form 10-KSB and any other filings filed with the SEC;
(k) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(l) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(m) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(n) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(o) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities or any of them;
(lq) the Subscriber (i) is able to fend for him/her/itself understands and agrees that none of the Securities have been or will, except as set forth in this Agreement, be registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the Subscription; United States or, directly or indirectly, to U.S. Persons, as that term is defined in Regulation S under the 1933 Act (ii) has such knowledge “Regulation S”), except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment each case only in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentaccordance with applicable state securities laws;
(mr) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of a period of one year after the date of original issuance of the Securities (the one year period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state securities laws;
(s) the Subscriber acknowledges that the Subscriber it has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nt) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(u) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(v) the Subscriber (i) is able to fend for itself in the Subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Securities and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(w) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ox) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently the Company’s common shares are quoted on the over-the-counter market operated by the NASD’s Over-The-Counter Bulletin Board.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. Subscriber hereby represents, warrants and covenants to the Company as follows:
(a) The Subscriber hereby represents is purchasing the Shares for its own account, not as a nominee or agent, for investment purposes and warrants not with a present view towards resale, except pursuant to and covenants with sales exempted from registration under the Company (which representationsSecurities Act, warranties and covenants shall survive or registered under the Closing) that:Securities Act as contemplated by the Registration Rights Agreement.
(b) The Subscriber understands that (A) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting Shares (1) have not been registered under the laws of its jurisdiction of incorporation and all necessary approvals by its directorsSecurities Act or any state securities laws, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;
(c2) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result will be transferred in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to reliance upon an exemption from the registration and prospectus delivery requirements of the Securities Act pursuant to Regulation D promulgated thereunder, (3) will be transferred in reliance upon exemptions from the registration and prospectus delivery requirements of state securities laws that relate to private offerings, and (4) must be held by the Subscriber indefinitely, and (B) the Subscriber must therefore bear the economic risk of such investment indefinitely unless a subsequent disposition thereof is registered under the Securities Act and applicable state securities legislation in all jurisdictions relevant laws or is exempt therefrom. Subscriber further understands that such exemptions depend upon, among other things, the bona fide nature of the investment intent of the Subscriber expressed herein. Pursuant to this Subscription, and, as a consequencethe foregoing, the Subscriber will not be entitled to use most of acknowledges that until such time as the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale resale of the Shares has been registered under the Securities Act as contemplated by the Registration Rights Agreement or otherwise may be sold pursuant to an exemption from registration, the certificates representing the Shares acquired by the Subscriber shall bear a restrictive legend substantially as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation follows (and a stop-transfer order may be placed against transfer of the jurisdiction of residence of the Subscriber;certificates evidencing such Shares): "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND STATE SECURITIES LAWS, AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS (I) REGISTERED UNDER THE APPLICABLE SECURITIES LAWS OR (II) AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL ARE BOTH REASONABLY SATISFACTORY TO THE COMPANY, HAS BEEN DELIVERED TO THE COMPANY AND SUCH OPINION STATES THAT THE SHARES MAY BE TRANSFERRED WITHOUT SUCH REGISTRATION."
(jc) the The Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own accounthas knowledge, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge skill and experience in financial, business and investment matters as relating to be an investment of this type and is capable of evaluating the merits and risks of its prospective such investment and protecting the Subscriber’s interest in connection with the acquisition of the Shares. The Subscriber understands that the acquisition of the Shares is a speculative investment and involves substantial risks and that the Subscriber could lose the Subscriber’s entire investment in the Shares; . Further, the undersigned has carefully read and (iii) considered the matters set forth under the section entitled "Risk Factors" in the Company’s Annual Report on Form 10-KSB for its fiscal year ended December 31, 2006 and in the Memorandum, and has taken full cognizance of and understands all of the risks related to the purchase of the Shares. To the extent deemed necessary by the Subscriber, the Subscriber has retained, at its own expense, and relied upon, appropriate professional advice regarding the investment, tax and legal merits and consequences of purchasing and owning the Shares. The Subscriber has the ability to bear the economic risks of its prospective the Subscriber’s investment and can afford in the Company, including a complete loss of the investment, and the Subscriber has no need for liquidity in such investment;.
(md) The Subscriber has been furnished by the Subscriber acknowledges Company all information (or provided access to all information) regarding the business and financial condition of the Company, its expected plans for future business activities, the attributes of the Shares and the merits and risks of an investment in the Shares that the Subscriber has not acquired requested or otherwise needs to evaluate the investment in the Company.
(e) Subscriber is in receipt of and has carefully read and understands the following items (collectively, the "Disclosure Documents"):
(i) the Memorandum;
(ii) the Annual Report on Form 10-KSB of the Company filed with the Securities and Exchange Commission (the "SEC") for its fiscal year ended December 31, 2006;
(iii) the Quarterly Report on Form 10-QSB of the Company filed with the SEC for its quarterly period ended March 31, 2007;
(iv) the Current Reports on Form 8-K filed or furnished by the Company with the SEC since December 31, 2006, including the Current Reports on Form 8-K filed or furnished by the Company on March 8, 2007, March 23, 2007, April 23, 2007, May 9, 2007 and July 2, 2007; and
(v) the Amendment No. 1 to Registration Statement on Form SB-2 of the Company filed with the SEC on July 23, 2007.
(f) In making the proposed investment decision, the Subscriber is relying solely on investigations made by the Subscriber and the Subscriber’s representatives. The offer to sell the Shares as was communicated to the Subscriber in such a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect 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 the Shares; provided, however, manner that the Subscriber may sell or otherwise dispose was able to ask questions of and receive answers from the management of the Shares pursuant to registration Company concerning the terms and conditions of the Shares pursuant to the 1933 Act proposed transaction and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) that at no time was the Subscriber is not aware of presented with or solicited by or through any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisementsadvertisement, articlesarticle, notices leaflet, public promotional meeting, notice or other communications communication published in any newspaper, magazine or similar media or broadcast over television or radio or television, or presented at any seminar or meeting whose attendees have been invited by or any other form of general solicitation or general advertising; andpublic advertising or solicitation.
(og) no person has made to The Subscriber acknowledges that the Subscriber any written or oral representationshas been advised that:
(i) that The Shares offered hereby have not been approved or disapproved by the SEC or any person will resell state securities commission nor has the SEC or repurchase any state securities commission passed upon the accuracy or adequacy of any representation by the Securities;Company. Any representation to the contrary is a criminal offense.
(ii) that In making an investment decision, the Subscriber must rely on its own examination of the Company and the terms of the Offering, including the merits and risks involved. The Shares have not been recommended by any person will refund federal or state securities commission or regulatory authority. Furthermore, the purchase price foregoing authorities have not confirmed the accuracy or determined the adequacy of any of representation by the Securities;Company. Any representation to the contrary is a criminal offense.
(iii) The Shares will be "restricted securities" within the meaning of Rule 144 under the Securities Act, are subject to restrictions on transferability and resale and may not be transferred or resold except as permitted under the Securities Act and applicable state securities laws, pursuant to registration or exemption therefrom. The Subscriber is aware that the Subscriber may be required to bear the financial risks of this investment for an indefinite period of time.
(h) The Subscriber agrees to furnish the Company with such other information as the Company may reasonably request in order to verify the accuracy of the information contained herein and agrees to notify the Company immediately of any material change in the information provided herein that occurs prior to the future price or value Closing.
(i) The Subscriber further represents and warrants that the Subscriber is an "accredited investor" within the meaning of any Rule 501 of Regulation D promulgated under the Securities Act, and Subscriber has executed the Certificate of Accredited Investor Status, attached hereto as Exhibit D.
(j) As of the Securities; ordate of this Agreement the Subscriber and its affiliates do not have, and during the 30-day period prior to the date of this Agreement the Subscriber and its affiliates have not entered into, any "put equivalent position" as such term is defined in Rule 16a-1 of under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or short sale positions with respect to the Common Stock of the Company. In addition, the Subscriber shall comply with all applicable provisions of Regulation M promulgated under the Securities Act.
(ivk) that any If the Subscriber is a natural person, the Subscriber has reached the age of majority in the state in which the Subscriber resides, has adequate means of providing for the Subscriber’s current financial needs and contingencies, is able to bear the substantial economic risks of an investment in the Shares for an indefinite period of time, has no need for liquidity in such investment and, at the present time, could afford a complete loss of such investment.
(l) If this Agreement is executed and delivered on behalf of a partnership, corporation, limited liability company, trust, estate or other entity (an "Entity"): (i) such Entity has the full legal right and power and all authority and approval required (a) to execute and deliver, or authorize execution and delivery of, this Agreement and all other instruments executed and delivered by or on behalf of such Entity in connection with the purchase of the Securities will be listed Shares, (b) to delegate authority pursuant to power of attorney, and posted for trading on any stock exchange or automated dealer quotation system or that application has been made (c) to list purchase and post any hold such Shares; (ii) the signature of the party signing on behalf of such Entity is binding upon such Entity; and (iii) such Entity has not been formed for the specific purpose of acquiring such Shares, unless each beneficial owner of such Entity is qualified as an accredited investor within the meaning of Rule 501(a) of Regulation D promulgated under the Securities Act and has submitted information substantiating such individual qualification.
(m) If the Subscriber is a retirement plan or is investing on behalf of a retirement plan, the Subscriber acknowledges that investment in the Common Stock poses additional risks, including the inability to use losses generated by an investment in the Common Stock to offset taxable income.
(n) The Subscriber understands and confirms that the Company will rely on the representations and covenants contained herein in effecting the transactions contemplated by this Agreement and the other Transaction Documents (as defined herein). All representations and warranties provided to the Company furnished by or on behalf of the Company on Subscriber, taken as a whole, are true and correct and do not contain any stock exchange untrue statement of material fact or automated dealer quotation systemomit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. By executing this Subscription Agreement, the Subscriber (aon its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) The Subscriber hereby represents and represents, warrants to and covenants with to the Company Partnership and the Agent (which representationsand acknowledges that the Partnership, warranties the General Partner, the Agent and covenants shall survive their respective counsel are relying thereon), as at the Closing) date hereof and the Closing Date, that:
(a) if the Subscriber is an individual, the Subscriber is of the full age of majority in the jurisdiction in which this Subscription Agreement is executed and is legally competent to execute and deliver this Subscription Agreement, to perform all of its obligations hereunder, and to undertake all actions required of the Subscriber hereunder;
(b) if the Subscriber is not an individual, the Subscriber has the requisite power, authority, legal capacity and competence to enter into execute and execute deliver and be bound by this Subscription Agreement Agreement, to perform all of its obligations hereunder, and to take undertake all actions required pursuant hereto andof the Subscriber hereunder, and all necessary approvals of its directors, partners, shareholders, trustees or otherwise with respect to such matters have been given or obtained;
(c) if the Subscriber is a corporationbody corporate, it is partnership, unincorporated association or other entity, the Subscriber has been duly incorporated or created and is validly subsisting under the laws of its jurisdiction of incorporation or creation;
(d) if the Subscriber is not an individual, the Subscriber pre-existed the Offering and all necessary approvals by its directors, shareholders has a bona fide business other than the investment in the Units and others have been obtained was not created or used solely to authorize execution and performance purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in the Exhibit to Schedule "A" hereto;
(e) this Subscription Agreement on behalf of has been duly and validly authorized, executed and delivered by, and constitutes a legal, valid, binding and enforceable obligation of, the Subscriber;
(cf) if the Subscriber is acting as agent or trustee for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documents in connection with such subscription and on behalf of such principal, and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of, and constitutes a legal, valid, binding and enforceable obligation of, such principal;
(g) the entering into execution, delivery and performance by the Subscriber of this Subscription Agreement and the completion of the transactions contemplated hereby do not not, and will not, result in the a violation of any of the terms and provisions of any law law, regulation, order or ruling applicable to the Subscriber, and do not, and will not, constitute a breach of, or default under, any of the Subscriber's constating documents (if the Subscriber is not an individual) or of any agreement, written agreement or oral, covenant to which the Subscriber may be is a party or by which the Subscriber it is or may be bound;
(dh) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of confirms that the Subscriber enforceable against (and, if the Subscriber is not purchasing as principal, each beneficial purchaser for whom the Subscriber is acting):
(i) has such knowledge in accordance with financial and business affairs as to be capable of evaluating the merits and risks of its termsinvestment in the Units;
(eii) is capable of assessing the proposed investment in the Units as a result of the Subscriber's own experience or as a result of advice received from a person registered under applicable securities legislation;
(iii) is aware of the characteristics of the Units and the risks relating to an investment therein; and
(iv) is able to bear the economic risk of loss of its investment in the Units;
(i) the Subscriber acknowledges that no securities commission, stock exchange, governmental agency, regulatory body or similar authority has made any finding or determination or expressed any opinion with respect to the merits of investing in the Units;
(j) the Subscriber acknowledges that no prospectus or registration statement has been filed by the Partnership with any securities commission or similar regulatory authority in any jurisdiction in connection with the issuance of the Units and the issuance is acquiring the Securities pursuant to an exemption exempted from the registration and prospectus requirements available under the provisions of applicable securities legislation in all jurisdictions relevant to this Subscription, and, laws and as a consequence, result:
(i) the Subscriber will not may be entitled to use most restricted from using some of the civil remedies otherwise available under applicable securities legislation and laws;
(ii) the Subscriber will may not receive information that would otherwise be required to be provided to the Subscriber pursuant to it under applicable securities legislation;laws; and
(fiii) the Subscriber Partnership is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out relieved from certain obligations that would otherwise apply under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shareslaws;
(k) other than the Offering Memorandum, the Subscriber is has not an underwriter ofreceived or been provided with, nor has it requested, nor does it have any need to receive, any prospectus, sales or advertising literature, or dealer in, other document describing or purporting to describe the common shares business and affairs of the CompanyPartnership, nor is which has been prepared for delivery to, and review by, prospective purchasers in order to assist them in making an investment decision in respect of the Subscriber participating, purchase of Units pursuant to a contractual agreement or otherwise, in the distribution of the SharesOffering;
(l) the Subscriber (i) is able to fend for him/her/itself in confirms that neither the Subscription; (ii) has such knowledge and experience in business matters as to be capable Partnership, the Agent, nor any of evaluating their representative directors, employees, officers, agents, representatives or affiliates, the merits and risks General Partner or any of its prospective investment in the Shares; and representative directors, employees, officers, agents, representatives or affiliates have made any representations (iiiwritten or oral) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representationsSubscriber:
(i) regarding the future value of the Units;
(ii) that any person will resell or repurchase the Units;
(iii) that any of the Securities;Units will be listed on any stock exchange or traded on any market; or
(iiiv) that any person will refund the purchase price of the Units other than as provided in this Subscription Agreement;
(m) the Subscriber confirms that it has been advised to consult its own legal and financial advisors with respect to the suitability of the Units as an investment for the Subscriber, the tax consequences of purchasing and dealing with the Units, and the resale restrictions and "hold periods" to which the Units are or may be subject under applicable securities legislation or stock exchange rules, and has not relied upon any statements made by or purporting to have been made on behalf of the Partnership with respect to such suitability, tax consequences, and resale restrictions;
(n) except for the Subscriber's knowledge regarding its subscription for Units hereunder, the Subscriber has no knowledge of a "material fact" or a "material change" (as those terms are defined in the Securities Act (Ontario)) in the affairs of the Partnership that has not been generally disclosed;
(o) the Subscriber is resident in the jurisdiction indicated on the face page of this Subscription Agreement as the "Subscriber's Address" and the purchase by and sale to the Subscriber of the Units, and any act, solicitation, conduct or negotiation directly or indirectly in furtherance of such purchase and sale (whether with or with respect to the Subscriber or any beneficial purchaser) has occurred only in such jurisdiction;
(p) the Subscriber acknowledges that it and/or the Partnership may be required to provide applicable securities regulatory authorities or stock exchanges with information concerning the identities of the beneficial purchasers of the Units and the Subscriber agrees that, notwithstanding that the Subscriber may be purchasing the Units as agent for an undisclosed principal, the Subscriber will provide to the Partnership or the General Partner, on request, particulars as to the identity of such undisclosed principal as may be required by the Partnership in order to comply with the foregoing;
(q) the Subscriber has not relied upon any verbal or written representation as to fact or otherwise made by or on behalf of the Partnership, other than pursuant to the Offering Memorandum delivered to the Subscriber and except as expressly set forth herein;
(r) the Subscriber satisfies one of subsections (i), (ii), (iii), (iv) or (v) below:
(i) if the Subscriber is resident in or otherwise subject to the applicable securities laws of British Columbia, Alberta, Saskatchewan, Manitoba or Ontario, it is purchasing the Units as principal (or is deemed to be purchasing as principal) for its own account and not for the benefit of any other person, the Subscriber is an "accredited investor" as defined in National Instrument 45-106 entitled Prospectus Exemptions ("NI 45-106") (or, if applicable for Subscribers in Ontario, the corresponding categories for the definition of an "accredited investor" as defined in Section 73.3 of the Securities Act (Ontario)), which definitions are reproduced in Exhibit A to Schedule "A" attached hereto, the Subscriber was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45- 106 and reproduced in Exhibit A to Schedule "A" attached hereto, the Subscriber is not a trust company or trust corporation registered under the laws of Xxxxxx Xxxxxx Island that is not registered or authorized under the Trust and Loan Companies Act (Canada) or under comparable legislation in another jurisdiction of Canada and the Subscriber has executed and delivered to the Partnership a Representation Letter in the form attached hereto as Schedule "A" indicating that the Subscriber fits within one of the categories of "accredited investor" set forth in such definition by initialing the appropriate category on Exhibit A to Schedule "A" and, if the Subscriber is an individual described in any of paragraphs (j), (k) or (l) of Exhibit A, the Securities;Subscriber has also duly completed and executed Exhibit B to Schedule "A"; OR
(ii) the Subscriber is purchasing the Units as principal for its own account, not for the benefit of any other person, and the aggregate acquisition cost of the Units to it is not less than Cdn. $150,000 and the Subscriber is not an individual but is a corporation, syndicate, partnership or other form of unincorporated organization that was not created or used solely to purchase or hold securities in reliance on this section; OR
(iii) as if the Subscriber is not an accredited investor and is resident in or otherwise subject to the future price applicable securities laws of Alberta, Saskatchewan or value Manitoba, it is purchasing the Units as principal for its own account and not for the benefit of any other person, it has received or been provided with a copy of the SecuritiesOffering Memorandum, it is an eligible investor (in which case, it was not created or used solely to purchase or hold securities as an eligible investor as defined in paragraph (a) of the definition of "eligible investor" in NI 45-106), and has duly completed and executed two (2) copies of each of the Representation Letter in the forms attached hereto as Schedule "B" (one copy for each of the Partnership and the Subscriber); orOR
(iv) that if the Subscriber is not an accredited investor and is resident in or otherwise subject to the applicable securities laws of British Columbia, it is purchasing the Units as principal for its own account and not for the benefit of any other person and it has received or been provided with a copy of the Securities will be listed Offering Memorandum and posted has duly completed and executed two (2) copies of the Representation Letter in the form attached hereto as Schedule "B" (one copy for trading each of the Partnership and the Subscriber); OR
(v) if the Subscriber is not purchasing the Units as a principal (or as a deemed principal pursuant to NI 45-106), it is duly authorized to enter into this Subscription Agreement and to execute and deliver all documentation in connection with the purchase on behalf of each beneficial purchaser, each of whom is purchasing as principal for its own account, not for the benefit of any stock exchange or automated dealer quotation system or that application other person, this Subscription Agreement has been made duly authorized, executed and delivered by or on behalf of, and constitutes a legal, valid, binding and enforceable obligation of, such disclosing principal, it acknowledges that the Partnership is required by law to list disclose to certain regulatory authorities the identity of each beneficial purchaser of Units for whom it may be acting, it and post any each beneficial purchaser is resident in the jurisdiction set out as the "Subscriber's Address" on the face page hereof, and each beneficial purchaser complies with Sections 3(r)(i), (ii), (iii) or (iv) hereof by virtue of its place of residence or by virtue of the Securities securities laws of such place being applicable to the Company on any stock exchange or automated dealer quotation system.Subscriber;
Appears in 1 contract
Samples: Subscription Agreement
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is not acquiring the Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(c) the Subscriber is resident in the jurisdiction set out under the "Name and Address" on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ef) the Subscriber is acquiring the Securities pursuant to an exemption from the registration as principal for its own account for investment purposes only and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account of any other person and not for distribution, assignment or benefit ofresale to others, directly and no other person has a direct or indirectlyindirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any U.S. Personother person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(kh) the Subscriber is aware that an investment in the Company and Pubco is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(j) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the SharesSecurities;
(k) the Subscriber understands and agrees that none of the Securities have been or will be registered under the 1933 Act or under any state securities or "blue sky" laws of any state of the United States and, unless so registered, may not be offered or sold in the United States or directly or indirectly to U.S. Persons, except in accordance with the provisions of Regulation S ("Regulation "S" promulgated under the 1933 Act, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state securities laws;
(l) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of a restricted period after the date of original issuance of the Securities (isuch period hereinafter referred to as the "Distribution Compliance Period") is able shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to fend for him/her/itself the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the Subscription; (ii) has such knowledge registration provisions of the 1933 Act or an exemption therefrom and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment each case only in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentaccordance with applicable state securities laws;
(m) the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result of, and it covenants that it will not itself engage in, any “"directed selling efforts” " (as defined in Regulation S under the 0000 XxxS) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(o) the Subscriber will indemnify the Company against, and will hold the Company and, where applicable, its respective directors, officers, employees, agents, advisors and shareholders harmless from, any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any representation or warranty of the Subscriber contained herein or in any document furnished by the Subscriber to the Company in connection herewith being untrue in any material respect or any breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(p) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(oq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that the shares of common stock of the Company are quoted on the over- the-counter market operated by the OTC Markets.
6.2 In this Subscription Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. 5.1 The Subscriber (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting hereunder) hereby represents, warrants and covenants to the Company and its counsel (and acknowledges that the Company and its counsel, are relying thereon) both at the date hereof and at the Closing Date that:
(a) The the Subscriber hereby represents it has been independently advised as to the restrictions with respect to trading in the Shares imposed by applicable securities legislation in the jurisdiction in which it resides or to which it is otherwise subject, it confirms that no representation (written or oral) has been made to it by or on behalf of the Company with respect thereto, it acknowledges that it is aware of the characteristics of the Shares, the risks relating to an investment therein and warrants of the fact that it will not be able to resell the Shares except in accordance with limited exemptions under applicable securities legislation and covenants regulatory policy until the expiration of the applicable restricted period and compliance with the Company (other requirements of applicable law; and it agrees that the certificates representing the Shares will bear a legend indicating that the resale of such securities is restricted and it further acknowledges that it should consult its own legal counsel in its jurisdiction of residence or to which representations, warranties it is otherwise subject for full particulars of applicable resale restrictions and covenants shall survive that it is the Closing) that:Subscriber's responsibility to comply with such restrictions before selling the Shares;
(b) the Subscriber has not received or been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum, prospectus, sales or advertising literature, or any other document describing or purporting to describe the legal capacity business and competence affairs of the Company which has been prepared for delivery to, and review by, prospective purchasers in order to assist it in making an investment decision in respect of the Shares and that the decision to enter into and execute this the Subscription Agreement and purchase the Shares has not been based upon any verbal or written representation as to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals fact or otherwise made by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement or on behalf of the SubscriberCompany except as set forth herein;
(c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and not become aware of nor has it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring purchased the Shares as principal for a result of any advertisement in printed media of general and regular paid circulation (or other printed public media), radio, television or telecommunications or other form of advertisement (including electronic display such as the Subscriber’s own account, for investment purposes only, and not Internet) with a view to, respect to the Company or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(ld) unless the Subscriber is purchasing under subparagraph 5.1(e), the Subscriber is purchasing the Shares as principal for its own account, not for the benefit of any other person, for investment only and not with a view to the resale or distribution of all or any of the Shares, it is resident in or otherwise subject to applicable securities laws of the jurisdiction set out as the "Subscriber's Address" on the face page hereof and it fully complies with one or more of the criteria set forth below:
(i) it is a Person resident in or otherwise subject to applicable securities laws of a jurisdiction other than Saskatchewan or Ontario and it is one of the following (please initial beside applicable category): _______ (A) a director, executive officer or "control person" (as defined in National Instrument 45 -106 "Prospectus and Registration Exemptions" ("NI 45-106") of the Canadian Securities Administrators) of the Company, or of an affiliate (as defined in NI 45-106) of the Company; or _______ (B) a spouse, parent, grandparent, brother, sister or child of any person referred to in subparagraph (A) above; or _______ (C) a parent, grandparent, brother, sister or child of the spouse of any person referred to in subparagraph (A) above; or _______ (D) a "close personal friend" of any person referred to in subparagraph (A) above, and, if requested by the Company or its counsel, will provide a signed statement describing the relationship with any such person; or _______ (E) a "close business associate" of any person referred to in subparagraph (A) above and, if requested by the Company or its counsel, will provide a signed statement describing the relationship with any such person; or _______ (F) an individual, corporation, partnership, trust, fund, association, syndicate, organization or other organized group of persons, whether incorporated or not, or an individual or other person in that person's capacity as a trustee, executor, administrator or personal or other legal representative (each a "Person" and collectively, "Persons") who, acting alone, in conjunction, or in concert with one or more other Persons, directly or indirectly, took the initiative in founding, organizing or substantially reorganizing the business of the Company and, as of the Closing Date, is actively involved in the business of the Company (a "Founder") or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a Founder of the Company, and, if requested by the Company or its counsel, will provide a signed statement describing the relationship with any such Founder; or _______ (G) a parent, grandparent, brother, sister or child of a spouse of a Founder of the Company; or _______ (H) a Person of which a majority of the voting securities are beneficially owned by, or a majority of directors are, persons described in subparagraphs (A) through (G) above; or _______ (I) a trust or estate of which all of the beneficiaries or a majority of the trustees are persons described in subparagraphs (A) through (G) above; or
(ii) it is resident in or otherwise subject to the applicable securities legislation of Ontario and it is one of the following (please initial): _______ (A) a founder of the Company; or _______ (B) an affiliate of a founder of the Company; _______ (C) a spouse, parent, brother, sister, grandparent or child of an executive officer, director or founder of the Company; or _______ (D) a person that is a control person of the Company; or
(iii) it is (please initial beside applicable category): _______ (A) an employee of the Company; or _______ (B) an executive officer of the Company (being an individual who is (I) a chair, vice-chair or president, (II) a vice-president in charge of a principal business unit, division or function including sales, finance or production, (III) an officer of the Company or any of its subsidiaries and who performs a policy-making function in respect of the Company, or (IV) performing a policy-making function in respect of the Company); or _______ (C) a director of the Company; or _______ (D) a consultant of the Company (being a Person, other than an employee, executive officer, or director of the Company or of a related entity of the Company, that (I) is engaged to provide services to the Company or a related entity of the Company, other than services provided in relation to a distribution, (II) provides the services under a written contract with the Company or a related entity of the Company, and (III) spends or will spend a significant amount of time and attention on the affairs and business of the Company or related entity of the Company; and includes, for an individual consultant, a corporation of which the individual consultant is an employee or shareholder, and a partnership of which the individual consultant is an employee or partner); or _______ (E) an employee, executive officer, director or consultant of a related entity of the Company; or _______ (F) a trustee, custodian, or administrator acting on behalf of, or for the benefit of, any person referred to in subparagraphs (A) through (E) above; or _______ (G) a holding entity (being a Person that is controlled by an individual) of any person referred to in subparagraphs (A) through (E) above; or _______ (H) an RRSP or a RRIF of any person referred to in subparagraphs (A) through (E) above; or _______ (I) a spouse of any person referred to in subparagraphs (A) through (E) above (a "spouse" being an individual who (I) is married to another individual and is not living separate and apart within the meaning of the Divorce Act (Canada), from the other individual, (II) is living with another individual in a marriage-like relationship, including a marriage-like relationship between individuals of the same gender, or (III) in Alberta only, is an adult interdependent partner within the meaning of the Adult Interdependent Relationships Act (Alberta)); or _______ (J) (J) a trustee, custodian, or administrator acting on behalf of, or for the benefit of, the spouse of any person referred to in subparagraphs (A) through (E) above; or _______ (K) (K) a holding entity of the spouse of any person referred to in subparagraphs (A) through (E) above; or _______ (L) (L) an RRSP or a RRIF of the spouse of any person referred to in subparagraphs (A) through (E) above;
(iv) it is resident in or otherwise subject to the applicable securities laws of a Province of Canada, it is an "accredited investor", as such term is defined in NI 45-106, it is not a trust company or trust corporation registered under the laws of Pxxxxx Xxxxxx Island that is not registered under the Trust and Loan Companies Act (Canada) or under comparable legislation in another jurisdiction of Canada, it was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106 and has initialed in Exhibit A to this Subscription Agreement indicating that the Subscriber satisfies one of the categories of "accredited investor" set forth in such definition;
(e) if it is not purchasing the Shares as a principal under subparagraph 5.1(d) hereof, it is duly authorized to enter into this Subscription Agreement and to execute and deliver all documentation in connection with the purchase on behalf of each beneficial purchaser for whom it is acting, each of whom is purchasing as principal for its own account, not for the benefit of any other person, for investment only and not with a view to the resale or distribution of all or any of the Shares, it acknowledges that the Company is required by law to disclose to certain regulatory authorities the identity of each beneficial purchaser of Shares for whom it may be acting, it and each beneficial purchaser is resident in or otherwise subject to the jurisdiction set out as the "Subscriber's Address" and "Principal's Address", respectively, on the face page hereof, and each beneficial purchaser complies with subparagraph 5.1(d) hereof by virtue of its place of residence or by virtue of the securities laws of such place being applicable to the Subscriber or it is acting as agent for one or more Disclosed Beneficial Principals, each of such principals is purchasing as principal for its own account, not for the benefit of any other person, for investment only, and not with a view to the resale or distribution of all or any of the Shares, and each of such principals complies with subparagraph 5.1(d) hereof as are applicable to it;
(f) if it or any beneficial purchaser for whom it is acting is a resident of or otherwise subject to applicable securities laws of any jurisdiction referred to in the preceding paragraphs 5.1(d) or 5.1(e ) but is not purchasing thereunder, it is purchasing pursuant to an exemption from prospectus requirements (particulars of which are enclosed herewith) available to it under applicable securities legislation and shall deliver to the Company such further particulars of the exemption(s) and the Subscriber's qualifications thereunder as the Company or its counsel may request; and
(g) the Subscriber (i) is able to fend for him/her/itself not a U.S. Person (as defined in Rule 902 of Regulation S ("Regulation S") under the United States Securities Act of 1933 (the "U.S. Act "), which definition includes, but is not limited to, any natural person resident in the SubscriptionUnited States, any corporation or partnership incorporated or organized under the laws of the United States or any estate or trust of which any executor, administrator or trustee is a U.S. Person; (ii) has such knowledge and experience is not purchasing any of the Shares for the account or benefit of any U.S. Person or for offering, resale or delivery for the account or benefit of any U.S. Person or for the account of any person in business matters as to be capable of evaluating any jurisdiction other than the merits and risks of its prospective investment jurisdiction set out in the Sharesname and address of the Investor set forth herein below; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber has was not acquired the offered any Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect 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 and was outside the United States for at the resale time of the Shares; provided, however, that the Subscriber may sell or otherwise dispose execution and delivery of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided hereinthis Agreement;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Dundee Agricultural Corp)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) the Subscriber has the requisite knowledge and experience in accordance with its termsfinancial and business matters as to be capable of evaluating the merits and risks of the investment in the Shares and the Company, and the Subscriber is providing evidence of such knowledge and experience in these matters through the information requested in the Questionnaires;
(e) all information contained in the Subscriber Questionnaires is acquiring complete and accurate and may be relied upon by the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationCompany;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(jg) the Subscriber is outside acquiring the Shares for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Shares in the United States when receiving and executing this Subscription Agreement and or to U.S. Persons;
(h) the Subscriber is acquiring the Shares as principal for the Subscriber’s 's own accountaccount (except for the circumstances outlined in paragraph 6.1(j)), for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(ki) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(lj) if the Subscriber is acquiring the Shares as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber (i) is able has sole investment discretion with respect to fend for him/her/itself in each such account and it has full power to make the Subscription; foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) has such knowledge the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an "Accredited Investor", as the term is defined in Regulation D under the 1933 Act and experience in business matters as to be capable of evaluating Multilateral Instrument 45-103 adopted by the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentBritish Columbia Securities Commission;
(mk) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) 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 Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nl) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(om) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTC Bulletin Board.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Digital Youth Network Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(b) : the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(c) ; the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) ; the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber; the Subscriber has the requisite knowledge and experience in accordance with its terms;
(e) financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities and the Company, and the Subscriber is acquiring providing evidence of such knowledge and experience in these matters through the Securities pursuant to an exemption from information requested in the registration Questionnaires; all information contained in the Questionnaires is complete and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, accurate and may be relied upon by the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) Company; the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) ; the Subscriber is outside acquiring the Securities for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Securities in the United States when receiving and executing this Subscription Agreement and or to U.S. Persons; the Subscriber is acquiring the Shares Securities as principal for the Subscriber’s own accountaccount (except for the circumstances outlined in paragraph 0), for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) Securities; the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) Securities; if the Subscriber (i) is able acquiring the Securities as a fiduciary or agent for one or more investor accounts: the Subscriber has sole investment discretion with respect to fend for him/her/itself in each such account and it has full power to make the Subscription; (ii) has such knowledge foregoing acknowledgements, representations and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss agreements on behalf of such investment;
(m) account, and the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an “Accredited Investor”, as the term is defined in Regulation D under the 1933 Act and in Multilateral Instrument 45-103 adopted by the British Columbia Securities Commission; the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 1000 Xxx) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) ; the Subscriber is not aware of any advertisement of any of the Securities Securities; and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) : that any person will resell or repurchase any of the Securities;
(ii) ; that any person will refund the purchase price of any of the Securities;
(iii) ; as to the future price or value of any of the Securities; or
(iv) or that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTC Bulletin Board.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Braintech Inc)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company Issuer (which representationson its own behalf and, warranties if applicable, on behalf of the Beneficial Purchaser from whom the Subscriber is contracting hereunder) that, as at the date of this Subscription Agreement and covenants shall survive at the Closing:
(a) that:the Subscriber is a U.S. Person;
(b) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(c) it has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cd) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(de) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationSubscriber;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Personhas received and carefully read this Subscription Agreement;
(g) the Subscriber is not a U.S. Personaware that an investment in the Issuer is speculative and involves certain risks, including the possible loss of the entire investment;
(h) the Subscriber is resident has made an independent examination and investigation of an investment in the jurisdiction set out under Units and the heading “Name Issuer and Address of Subscriber” has depended on the signature page advice of this Subscription Agreementits legal and financial advisors and agrees that the Issuer will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Units and the Issuer;
(i) the sale Subscriber (i) has adequate net worth and means of the Shares to the Subscriber as contemplated providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this Subscription Agreement complies with or investment, and (iii) is exempt from able to bear the applicable securities legislation economic risks of an investment in the jurisdiction Units for an indefinite period of residence of the Subscribertime;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesUnits; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(k) all information contained in the Questionnaires is complete and accurate and may be relied upon by the Issuer;
(l) the Subscriber understands and agrees that the Issuer and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and the Questionnaires and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Issuer;
(m) the Subscriber acknowledges that is purchasing the Securities for the Subscriber’s own account for investment purposes only and not for the account of any other person and not for distribution, assignment or resale to others, and no other person has a direct or indirect beneficial interest is such Securities, and the Subscriber has not acquired subdivided the Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) Subscriber’s interest in the United States in respect of the Shares which would include Securities with 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided hereinother person;
(n) the Subscriber is not an underwriter of, or dealer in, the shares of common stock of the Issuer, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Securities;
(o) the Subscriber has previously invested in the Issuer and/or has a pre-existing relationship with the Issuer, is not aware of any advertisement of any of the Securities Units and is not acquiring the Shares Units as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(op) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company Issuer on any stock exchange or automated dealer quotation system, except that certain market makers make market in the Issuer’s shares of common stock on the Financial Industry Regulatory Authority’s OTC Bulletin Board; and
(q) the Subscriber acknowledges and agrees that the Issuer shall not consider the Subscriber’s Subscription for acceptance unless the undersigned provides to the Issuer, along with an executed copy of this Subscription Agreement:
(i) a fully completed and executed copy of each of the Questionnaires in the forms attached hereto as Exhibit A and Exhibit B, and
(ii) such other supporting documentation that the Issuer or its legal counsel may request to establish the Subscriber’s qualification as a qualified investor.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Anavex Life Sciences Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is a U.S. Person;
(b) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(c) it has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cd) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(de) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationSubscriber;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Personhas received and carefully read this Subscription Agreement;
(g) the Subscriber is not a U.S. Personaware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(h) the Subscriber is resident has made an independent examination and investigation of an investment in the jurisdiction set out under Shares and the heading “Name Company and Address of Subscriber” has depended on the signature page advice of this Subscription Agreementits legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Shares and the Company;
(i) the sale Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation for an indefinite period of the jurisdiction of residence of the Subscribertime;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(k) all information contained in the Questionnaires is complete and accurate and may be relied upon by the Company;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and the Questionnaires and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber acknowledges that is purchasing the Shares for its own account for investment purposes only and not for the account of any other person and not for distribution, assignment or resale to others, and no other person has a direct or indirect beneficial interest is such Shares, and the Subscriber has not acquired subdivided his interest in the Shares as a result of, and will not itself engage in, with any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided hereinother person;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber is not aware of any advertisement of any of the Securities Shares and is not acquiring purchasing the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(op) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;Shares,
(ii) that any person will refund the purchase price of any of the Securities;Shares,
(iii) as to the future price or value of any of the Securities; Shares, or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system; and
(q) the Subscriber acknowledges and agrees that the Company shall not consider the Subscriber’s Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Subscription Agreement:
(i) fully completed and executed Questionnaires in the forms attached hereto as Exhibit A and B, respectively; and
(ii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber’s qualification as a qualified investor.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for the purpose of the Subscription Agreement includes any person in the United States.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Kore Nutrition, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriberhereto;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ed) the Subscriber is acquiring the Securities pursuant to an exemption from the registration Units for such Subscriber's own account and/or benefit for investment and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, not as a consequence, the Subscriber will nominee and not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided with a view to the Subscriber pursuant to applicable securities legislation;distribution thereof.
(fe) the Subscriber is not acquiring the Shares Units for the account or benefit of, directly or indirectly, any U.S. Person;
(gf) the Subscriber is not a U.S. PersonPerson (as defined in Regulation S);
(hg) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ih) the sale of the Shares Units to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(i) the Subscriber is acquiring the Units for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Units in the United States or to U.S. Persons;
(j) the Subscriber is outside the United States at the time of the offer and sale of the Units and when receiving and executing this Subscription Agreement and is acquiring the Shares Units as principal for the Subscriber’s 's own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesUnits;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesUnits;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscriptionpurchase of the Units; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesUnits; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any public solicitation or advertisement of an offer in connection with any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingUnits; and
(on) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesUnits;
(ii) that any person will refund the purchase price of any of the SecuritiesUnits;
(iii) as to the future price or value of any of the SecuritiesUnits; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system; except that the Company’s common stock is currently approved for trading on OTC BB.
(o) The Subscriber will not engage in hedging transactions with respect to the Units unless in compliance with the 1933 Act.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Traceguard Technologies, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company Issuer (which representationson its own behalf and, warranties if applicable, on behalf of the Beneficial Purchaser from whom the Subscriber is contracting hereunder) that, as at the date of this Subscription Agreement and covenants shall survive at the Closing:
(a) that:the Subscriber is not a U.S. Person;
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationan entity, it is duly incorporated or organized and validly subsisting under the laws of its jurisdiction of incorporation or organization 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 Subscriber;
(c) the 1933 Act or any state securities laws and that the sale of the Shares contemplated hereby is being made to a limited number of U.S. Accredited Investors in transactions not requiring registration under the 1933 Act; accordingly the Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the 1933 Act;
(d) the Subscriber acknowledges that the Issuer has not registered the offer and sale to the Subscriber of the Securities under the 1933 Act and the Subscriber acknowledges that there may be substantial restrictions on the transferability of, and that it may not be possible to liquidate its investment readily in, the Shares;
(e) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. PersonSubscriber;
(g) the Subscriber is not a U.S. Personhas received and carefully read this Subscription Agreement;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the Subscriber is a resident of an International Jurisdiction (which is defined herein to mean a country other than Canada or the United States) and the Subscriber on its own behalf and, if applicable on behalf of others for whom it is hereby acting that:
(i) the Subscriber is knowledgeable of, or has been independently advised as to, the International Securities Laws (which is defined herein to mean, in respect of each and every offer or sale of Purchased Securities, any securities laws having application to the Shares Purchaser and the purchase of the Securities other than the laws of Canada and the United States and all regulatory notices, orders, rules, regulations, policies and other instruments incidental thereto) which would apply to this subscription, if any;
(ii) the Subscriber is purchasing the Securities pursuant to an applicable exemption from any prospectus, registration or similar requirements under the International Securities Laws of that International Jurisdiction, or, if such is not applicable, the Subscriber is permitted to purchase the Securities under the International Securities Laws of the International Jurisdiction without the need to rely on exemptions; (iii) the subscription by the Subscriber does not contravene any of the International Securities Laws applicable to the Subscriber as contemplated and the Issuer and does not give rise to any obligation of the Issuer to prepare and file a prospectus or similar document or to register the Securities or to be registered with any governmental or regulatory authority;
(iv) the International Securities Laws do not require the Issuer to make any filings or seek any approvals of any kind whatsoever from any regulatory authority of any kind whatsoever in this Subscription Agreement the International Jurisdiction; and
(v) the Securities are being acquired for investment purposes only and not with a view to resale and distribution, and the distribution of the Securities to the Subscriber by the Issuer complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriberall International Securities Laws;
(j) the Subscriber is outside aware that an investment in the United States when receiving Issuer is speculative and executing this Subscription Agreement and is acquiring involves certain risks, including the Shares as principal for possible loss of the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesentire investment;
(k) the Subscriber is not has made an underwriter of, or dealer in, the common shares independent examination and investigation of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, an investment in the distribution Securities and the Issuer and has depended on the advice of its legal and financial advisors and agrees that the SharesIssuer will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Issuer;
(l) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(m) the Subscriber understands and agrees that the Issuer and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Issuer;
(n) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mo) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in is outside the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act when receiving and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided hereinexecuting this Subscription Agreement;
(np) the Subscriber understands and agrees that none of the Securities have been registered under any state securities or “blue sky” laws of any state of the United States;
(q) the Subscriber is not aware an underwriter of, or dealer in, the shares of any advertisement of any common stock of the Securities and Issuer, nor is not acquiring the Shares as Subscriber participating, pursuant to a result contractual agreement or otherwise, in the distribution of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; andthe Securities;
(or) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company Issuer on any stock exchange or automated dealer quotation system.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Online Disruptive Technologies, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and represents, warrants to and covenants with and to the Company (which representations, warranties and covenants shall survive the Closing) and acknowledges that the Company is relying thereon that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and and, upon acceptance thereof by the Company, it constitutes will constitute a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(fd) the Subscriber is not acquiring the Shares Units for the account or benefit of, directly or indirectly, any U.S. Person, as that term is defined in Regulation S;
(ge) the Subscriber is a director of the Company;
(f) the Subscriber is not a U.S. Person, as that term is defined in Regulation S;
(hg) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ih) the sale Subscriber has inquired into the applicable securities legislation of the Shares to its jurisdiction of residence and the Subscriber as contemplated in this Subscription Agreement either complies with or is exempt from the applicable securities legislation of the Subscriber's jurisdiction of residence of the Subscriberresidence;
(ji) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Units as principal for the Subscriber’s 's own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Units;
(kj) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber an affiliate of any underwriter of or dealer in the Securities, nor is it participating, pursuant to a contractual agreement contract or otherwise, in the any distribution of the SharesSecurities;
(k) the Subscriber agrees that, unless and until the Securities have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, it will not offer or sell its Securities in the United States, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and, in any event, in compliance with all Applicable Securities Laws;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesUnits; and (iiiii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber has not acquired the Shares Units as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 XxxS) in the United States in respect of the Shares Units 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose any of the Shares pursuant to registration of Securities in the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided hereinUnited States;
(n) any offer or and sale of any of the Securities prior to the expiration of a period of six months after the date of original issuance of that respective Security (the six-month period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with Applicable Securities Laws;
(o) it will not engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with Applicable Securities Laws and the Subscriber is not aware of any advertisement of of, or any general solicitation in respect of, any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingSecurities; and
(op) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system; except that the Company’s Common Stock is currently (i) listed for quotation on the U.S. Over the Counter Bulletin Board and (ii) listed on the TSX Venture Exchange.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Argentex Mining Corp)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber TheSubscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(b) the Subscriber is resident in the jurisdiction set forth on page 3 underneath the Subscriber’s name and signature.
(c) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it Subscriber is duly incorporated and validly subsisting under the laws of its Subscriber’s 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 Subscriber;.
(cd) the Subscriber (i) has adequate net worth and means of providing for Subscriber’s current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time.
(e) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of Subscriber’s legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company.
(f) all information contained in the Questionnaire is complete and accurate and may be relied upon by the Company, and the Subscriber will notify the Company immediately of any material change in any such information occurring prior to the closing of the purchase of the Securities.
(g) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;.
(dh) the Subscriber has duly executed and delivered this Subscription Agreement Agreement, and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsSubscriber;
(ei) the Subscriber is acquiring understands and agrees that none of the Securities pursuant to an exemption from have been registered under the registration and prospectus requirements of applicable 1933 Act or any state securities legislation in all jurisdictions relevant to this Subscriptionlaws, and, as a consequenceunless so registered, none may be offered or sold in the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit ofUnited States or, directly or indirectly, any to U.S. Person;
Persons (gas defined herein) except pursuant to an exemption from, or in a transaction not subject to, the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale Registration Requirements of the Shares to the Subscriber as contemplated 1933 Act and in this Subscription Agreement complies each case only in accordance with or is exempt from the applicable state securities legislation of the jurisdiction of residence of the Subscriberlaws;
(j) the Subscriber is outside purchasing the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal Securities for the Subscriber’s own account, account for investment purposes only, only and not with a view tofor the account of any other person and not for distribution, assignment or for, resale, distribution or fractionalisation thereof, in whole or in partresale to others, and no other person has a direct or indirect beneficial interest in is such Shares;, and the Subscriber has not subdivided his interest in the Securities with any other person.
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge Subscription and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its Subscriber’s prospective investment and can afford the complete loss of such investment;.
(l) if Subscriber is acquiring the Securities as a fiduciary or agent for one or more investor accounts, Subscriber has sole investment discretion with respect to each such account and Subscriber has full power to make the foregoing acknowledgments, representations, and agreements on behalf of such account.
(m) the Subscriber acknowledges understands and agrees that the Subscriber has not acquired Company and others will rely upon the Shares as a result of, truth and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect accuracy of the Shares which would include acknowledgments, representations and agreements contained in sections 5 and 6 hereof and agrees that if any activities undertaken for of such acknowledgments, representations and agreements are no longer accurate or have been breached, Subscriber shall promptly notify 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;Company.
(n) the Subscriber:
(i) is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the Subscriber is resident (the “International Jurisdiction”) which would apply to the acquisition of the Securities,
(ii) is purchasing the Securities pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not aware applicable, the Subscriber is permitted to purchase the Securities under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions,
(iii) acknowledges that the applicable securities laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any advertisement kind whatsoever from any securities' regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities, and
(iv) represents and warrants that the acquisition of the Securities by the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or B. any continuous disclosure reporting obligation of the Company in the International Jurisdiction, and
(o) the Subscriber will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Company, acting reasonably (p) the Subscriber is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio radio, or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is resident in the jurisdiction set forth on page 2 underneath the Subscriber’s name and signature;
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(c) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(d) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in anyway whatsoever for the Subscriber’s decision to invest in the Shares and the Company;
(e) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsSubscriber;
(eg) it understands and agrees that none of the Subscriber is acquiring Shares have been registered under the Securities pursuant to an exemption from the registration and prospectus requirements of applicable 1933 Act or any state securities legislation in all jurisdictions relevant to this Subscriptionlaws, and, as a consequenceunless so registered, none may be offered or sold in the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit ofUnited States or, directly or indirectly, any to U.S. Person;
Persons (gas defined herein) except pursuant to an exemption from, or in a transaction not subject to, the Subscriber is not a U.S. PersonRegistration Requirements of the 1933 Act and in each case only in accordance with state securities laws;
(h) the Subscriber it is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of purchasing the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s its own account, account for investment purposes only, only and not with a view tofor the account of any other person and not for distribution, assignment or for, resale, distribution or fractionalisation thereof, in whole or in partresale to others, and no other person has a direct or indirect beneficial interest in is such Shares, and the Subscriber has not subdivided his interest in the Shares with any other person;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) it is able to fend for him/her/itself in the Subscription; (ii) has such knowledge Subscription and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(j) if it is acquiring the Shares as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgments, representations and agreements on behalf of such account;
(k) it understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgments, representations and agreements contained in sections 5 and 6 hereof and agrees that if any of such acknowledgments, representations and agreements are no longer accurate or have been breached, it shall promptly notify the Company;
(l) the Subscriber:
(i) is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the Subscriber is resident (the “International Jurisdiction”) which would apply to the acquisition of the Shares,
(ii) is purchasing the Shares pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Subscriber is permitted to purchase the Shares under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions,
(iii) acknowledges that the applicable securities laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of any of the Securities, and
(iv) represents and warrants that the acquisition of the Shares by the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or
B. any continuous disclosure reporting obligation of the Company in the International Jurisdiction, and
(m) the Subscriber acknowledges that will, if requested by the Subscriber has not acquired Company, deliver to the Shares as Company a result ofcertificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under iv) above to the 0000 Xxx) in the United States in respect satisfaction of the Shares which would include any activities undertaken for the purpose ofCompany, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;acting reasonably
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio radio, or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the shares of the Company's common stock on the OTC Bulletin Board.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S and for the purpose of the Subscription includes any person in the United States.
Appears in 1 contract
Samples: License Agreement (Caduceus Software Systems Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representationsrepresents, warranties and covenants shall survive with and to the ClosingCompany as follows:
(a) that:Subscriber is at least eighteen (18) years of age and is under no legal disability nor is Subscriber subject to any order which would prevent or interfere with his, her or it’s execution or delivery of this Agreement.
(b) Subscriber has received a copy of the Prospectus dated [__________], 2016, or the Company has made available to the Subscriber has an electronic version thereof as filed by the legal capacity and competence Company with the Commission, prior to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if or in connection with the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;Agreement.
(c) The Subscriber acknowledges and agrees that the entering into of subscription hereunder is irrevocable, except as required by applicable law, and that this Subscription Agreement and shall survive the transactions contemplated hereby do not result in the violation of any death or disability of the terms undersigned and provisions of any law applicable shall be binding upon and inure to the Subscriber benefit of his, her or of any agreementits heirs, written or oralexecutors, to which the Subscriber may be a party or by which the Subscriber is or may be bound;administrators, successors, legal representatives and permitted assigns.
(d) The Subscriber understands that the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and subscription made hereby is not binding agreement of upon the Subscriber enforceable against Company until accepted by the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, andCompany, as a consequence, evidenced by the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided delivery to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares Company’s signed counterpart to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation executed by a duly authorized officer of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes onlyCompany, and not with a view to, that the Company has the right to accept or for, resale, distribution or fractionalisation thereofreject this subscription, in whole or in part, in its sole and complete discretion.
(e) The Subscriber understands that (i) if this subscription is rejected in whole, the Company shall return to Subscriber, without interest, the payment tendered by Subscriber for the Shares, in which case the Company and Subscriber shall have no further obligation to each other person hereunder or (ii) in the event of a partial rejection of this subscription, Subscriber’s payment will be returned to Subscriber, without interest, whereupon Subscriber agrees to deliver a new payment in the amount of the purchase price for the number of Shares to be purchased hereunder following a partial rejection of this subscription.
(f) Except as set forth in the Prospectus, no representations or warranties, oral or otherwise, have been made to Subscriber by the Company or any other person, whether or not associated with the Company or the Offering. In entering into this transaction, Subscriber is not relying upon any information, other than that contained in the Prospectus and the exhibits thereto and the results of any independent investigation conducted by Subscriber at Subscriber’s sole discretion and judgment.
(g) Subscriber is aware that the purchase of the Shares is a speculative investment involving a high degree of risk and that there is no guarantee that the Subscriber will realize any gain from this investment and that the Subscriber could lose the total amount of the Subscriber's investment.
(h) Subscriber understands that no federal or state agency has made any finding or determination regarding the fairness of this Offering, or any recommendation or endorsement of the Shares or the Offering.
(i) FOR PARTNERSHIPS, CORPORATIONS, TRUSTS, OR OTHER ENTITIES ONLY: If the Subscriber is a direct partnership, corporation, trust, or indirect beneficial interest other entity, (i) the Subscriber has the full power and authority to execute this Agreement on behalf of such entity and to make the representations and warranties made herein on its behalf, and (ii) this investment in the Company has been affirmatively authorized, if required, by the governing board of such Shares;entity and is not prohibited by the governing documents of the entity.
(j) The address shown under the Subscriber's signature at the end of this Agreement is the Subscriber's principal residence if he or she is an individual, or its principal business address if a corporation or other entity.
(k) All information herein concerning the Subscriber is not an underwriter of, or dealer in, the common shares correct and complete as of the Company, nor is date this Agreement was executed by the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation systemSubscriber.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. (a) 6.1. The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber It has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cb) the The entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if the Subscriber is a corporate entity, the documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the The Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) The Subscriber in accordance with its termshas received and carefully read this Subscription Agreement;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the The Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(if) the sale of The Subscriber is purchasing the Shares pursuant to the Subscriber as contemplated in this Subscription Agreement complies with exemptions from prospectus or is exempt from the equivalent requirements under applicable securities legislation of the jurisdiction of residence of the Subscriberlaws;
(jg) the The Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, only and not with a view toto resale or distribution;
(h) The Subscriber is aware that an investment in the Company is speculative and involves certain risks, or forincluding the possible loss of the entire investment;
(i) The Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Company;
(j) The Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, resale, distribution or fractionalisation thereof, (ii) has no need for liquidity in whole or in partthis investment, and no other person has a direct or indirect beneficial interest (iii) is able to bear the economic risks of an investment in such Sharesthe Shares for an indefinite period of time;
(k) The Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and the Questionnaire and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber is not an underwriter of, or dealer in, the common shares of shall promptly notify the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the The Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) The Subscriber understands and agrees that the Shares are “restricted securities” as that term is defined in Rule 144 promulgated by the Commission under the Securities Act, the resale of the Shares is restricted by federal and state securities laws and, accordingly, the Shares must be held indefinitely unless their resale is subsequently registered under the Securities Act or an exemption from such registration is available for their resale;
(n) By completing the Questionnaire, the Subscriber acknowledges is representing and warranting that it is an "accredited investor" as that term is defined in Rule 501 of Regulation D of the Subscriber has not acquired the Shares as 1933 Act or a result of, and will not itself engage in, any “directed selling effortsnon-“U.S. person,” (as defined in Regulation S under the 0000 XxxSecurities Act;
(o) All information contained in the United States Questionnaire is complete and accurate and may be relied upon by the Company, and the Subscriber will notify the Company immediately of any material change in respect any such information occurring prior to the closing of the Shares which would include any activities undertaken for purchase of the purpose Shares;
(p) The Subscriber is not an underwriter of, or that could reasonably be expected dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to have the effect ofa contractual agreement or otherwise, conditioning the market in the United States for the resale distribution of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nq) the The Subscriber is not aware of any advertisement of any of the Securities Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(or) no person has made The Subscriber acknowledges and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Subscriber any written or oral representations:
Company, along with an executed copy of this Subscription Agreement: (i) that any person will resell or repurchase any of a fully completed and executed Questionnaire in the Securities;
form attached hereto as Exhibit A, and (ii) such other supporting documentation that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation systemits legal counsel may request to establish the Subscriber's qualification as a qualified investor.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. (a) 7.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is not acquiring the Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(c) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ef) the Subscriber is acquiring the Securities pursuant to an exemption from the registration as principal for its own account for investment purposes only and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account of any other person and not for distribution, assignment or benefit ofresale to others, directly and no other person has a direct or indirectlyindirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any U.S. Personother person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(kh) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Forms 00-X, 00-X, 0-X and any other filings filed with the SEC;
(i) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(j) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the SharesSecurities;
(k) the Subscriber understands and agrees that none of the Securities have been or will be registered under the 1933 Act or under any state securities or “blue sky” laws of any state of the United States and, unless so registered, may not be offered or sold in the United States or directly or indirectly to U.S. Persons, except in accordance with the provisions of Regulation S (“Regulation “S” promulgated under the 1933 Act, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state securities laws;
(l) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of a restricted period after the date of original issuance of the Securities (isuch period hereinafter referred to as the “Distribution Compliance Period”) is able shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to fend for him/her/itself the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the Subscription; (ii) has such knowledge registration provisions of the 1933 Act or an exemption therefrom and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment each case only in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentaccordance with applicable state securities laws;
(m) the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result of, and it covenants that it will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 XxxS) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(o) the Subscriber will indemnify the Company against, and will hold the Company and, where applicable, its respective directors, officers, employees, agents, advisors and shareholders harmless from, any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any representation or warranty of the Subscriber contained herein or in any document furnished by the Subscriber to the Company in connection herewith being untrue in any material respect or any breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(p) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(oq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently the Company’s common shares are quoted on the over-the-counter market operated by the Over-The-Counter Bulletin Board operated by FINRA.
7.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber it has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, and it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsSubscriber;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(hd) the Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(e) the Subscriber:
(i) is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the Subscriber is resident (the "International Jurisdiction") which would apply to the acquisition of the Note and the Warrants, CW941203.3
(ii) is purchasing the Note and the Warrants pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Subscriber is permitted to purchase the Note and the Warrants under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions,
(iii) acknowledges that the applicable securities laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of any of the Securities, and
(iv) represents and warrants that the acquisition of the Note and the Warrants by the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or
B. any continuous disclosure reporting obligation of the Company in the International Jurisdiction, and
(v) the Subscriber will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Company, acting reasonably;
(f) the Subscriber is acquiring the Securities as principal for investment only and not with a view to resale or distribution;
(g) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(h) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(i) the sale Subscriber (i) has adequate net worth and means of the Shares to the Subscriber as contemplated providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this Subscription Agreement complies with or investment, and (iii) is exempt from able to bear the applicable securities legislation economic risks of an investment in the jurisdiction Securities for an indefinite period of residence of the Subscribertime;
(j) the Subscriber is outside understands and agrees that the United States when receiving Company and executing others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and is acquiring the Shares as principal for Questionnaire and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesSubscriber shall promptly notify the Company;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(ml) the Subscriber acknowledges understands and agrees that none of the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S Securities have been registered under the 0000 Xxx) 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in respect accordance with the provisions of Regulation S, pursuant to an effective CW941203.3 registration statement under the Shares which would include any activities undertaken for the purpose of1933 Act, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Shares pursuant to the 1933 Act and any in each case only in accordance with applicable state and federal provincial securities laws or under laws;
(m) by completing the Questionnaire, the Subscriber is representing and warranting that it is an exemption from such registration requirements and "accredited investor" as otherwise provided hereinthat term is defined in Regulation D of the 1933 Act;
(n) all information contained in the Questionnaire is complete and accurate and may be relied upon by the Company, and the Subscriber will notify the Company immediately of any material change in any such information occurring prior to the closing of the purchase of the Securities;
(o) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Securities;
(p) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Conversion Shares or the Warrant Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(q) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(or) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTCBB; and
(s) the Subscriber acknowledges and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Subscription Agreement:
(i) a fully completed and executed Questionnaire in the form attached hereto as Exhibits C and D, and
(ii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as a qualified investor.
6.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S. CW941203.3
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Counterpath Solutions, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto hereto; and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(fd) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(ge) the Subscriber is not a U.S. Person;
(hf) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ig) the sale Subscriber is acquiring the Shares for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Shares in the United States or to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the SubscriberU.S. Persons;
(jh) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s 's own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(ki) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(lj) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mk) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nl) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(om) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system; except that the Company’s common shares are currently approved for trading on the U.S. Over the Counter Bulletin Board.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Integrated Security Technologies, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others other have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;.
(c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;Subscriber.
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as not a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationU.S. Person;
(f) the Subscriber is not acquiring the Shares Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(ih) the sale of the Shares Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(i) the Subscriber is acquiring the Securities for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Securities in the United States or to U.S. Persons;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s 's own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesSecurities;
(k) the Subscriber understands and agrees that none of the Securities have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(l) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities;
(lm) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mn) the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result of, and will not itself engage in, any “"directed selling efforts” " (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities 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 SharesSecurities; providedprovide, however, that the Subscriber may sell or otherwise dispose of any of the Offering Shares pursuant to registration of any of the Offering Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(no) the Subscriber understands and agrees that offers and sales of any of the Offering Shares prior to the expiration of a period of one year after the date of original issuance of the Offering Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(p) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with any applicable securities laws;
(q) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(or) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTC Bulletin Board.
(s) In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Asia Broadband Inc)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriberhereto;
(c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsSubscriber;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration has received and prospectus requirements of applicable securities legislation in all jurisdictions relevant to carefully read this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationSubscription Agreement;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(g) the Subscriber:
(i) the sale of the Shares to the Subscriber is knowledgeable of, or has been independently advised as contemplated in this Subscription Agreement complies with or is exempt from to, the applicable securities legislation laws of the securities regulators having application in the jurisdiction of residence in which the Subscriber is resident (the “International Jurisdiction”) which would apply to the acquisition of the SubscriberSecurities,
(ii) is purchasing the Securities pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Subscriber is permitted to purchase the Securities under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions,
(iii) acknowledges that the applicable securities laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of any of the Securities,
(iv) represents and warrants that the acquisition of the Securities by the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or
B. any continuous disclosure reporting obligation of the Company in the International Jurisdiction, and
(v) the Subscriber will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Company, acting reasonably;
(jh) the Subscriber is outside purchasing the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Securities as principal for the Subscriber’s own account, for investment purposes only, only and not with a view to, or for, resale, distribution or fractionalisation fractionalization thereof, in whole or in part, and, in particular, it has no intention to distribute either directly or indirectly any of the Securities in the United States or to U.S. Persons;
(i) the Subscriber is aware that an investment in the Company is speculative and no other person involves certain risks, including the possible loss of the entire investment;
(j) the Subscriber has a direct or indirect beneficial interest made an independent examination and investigation of an investment in such Sharesthe Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(k) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is not able to bear the economic risks of an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, investment in the distribution Securities for an indefinite period of the Sharestime;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and the Questionnaire and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(mn) the Subscriber is outside the United States when receiving and executing this Subscription Agreement;
(o) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of the period specified in Regulation S (such period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(p) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(q) the Subscriber acknowledges that the Subscriber it has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nr) the Subscriber understands and agrees that none of the Securities have been registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber is not an underwriter of, or dealer in, the shares of common stock of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Securities;
(t) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(u) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ov) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for the purpose of the Subscription Agreement includes any person in the United States.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Del Toro Silver Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 9.1 The Subscriber hereby represents and represents, warrants to and covenants with to the Company (which representations, warranties and covenants shall survive the Closingclosing) that:
(a) the Subscriber has no knowledge of a "material fact" or "material change" (as those terms are defined in the applicable Canadian securities legislation) in respect of the affairs of the Company that has not been generally disclosed to the public;
(b) the Subscriber is purchasing the Special Notes as principal for its own account and is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the execution page of this Agreement;
(c) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cd) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(de) the Subscriber has duly and validly authorized, executed and delivered this Subscription Agreement and except as specifically provided otherwise herein, it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;Subscriber,
(f) in connection with the Subscriber's investment in the Securities, the Subscriber has not relied upon the Company or the Company's legal counsel or advisers for investment, legal or tax advice, and has, if desired, in all cases sought the advice of the Subscriber's own personal investment advisor, legal counsel and tax advisers and the Subscriber is not acquiring either experienced in or knowledgeable with regard to the Shares for affairs of the account Company, or benefit ofeither alone or with its professional advisors is capable, directly or indirectlyby reason of knowledge and experience in financial and business matters in general, any U.S. Personand investments in particular, of evaluating the merits and risks of an investment in the Special Notes and is able to bear the economic risk of the investment and it can otherwise be reasonably assumed to have the capacity to protect its own interest in connection with the investment in the Special Notes;
(g) the Subscriber is not a U.S. Person and is not acquiring the Securities offered hereby for the account or benefit of a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of for the Securities;; and
(iii) as to the future price or value of the Securities.
(i) the Securities are not being acquired directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States, and the Subscriber does not have any agreement or understanding (either written or oral) with any U.S. Person or a person in the United States respecting:
(i) the transfer or assignment of any rights or interests in any of the Securities;
(ii) the division of profits, losses, fees, commissions, or any financial stake in connection with this Subscription; or
(iii) the voting of the Shares or Warrant Shares;
(j) the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the 1933 Act;
(k) the Subscriber is entirely at arm's length with the Company and following conversion of Debentures and Warrants into common shares of the Company, the Subscriber, including any parties acting in concert with the Subscriber, will not, directly or indirectly, beneficially own or exercise control or direction over 10% or more of the outstanding voting securities of the Company;
(l) the Subscriber will comply with the applicable provisions of all relevant securities legislation concerning the purchase and holding of the Special Notes and any resale of the Securities; and
(m) the Subscriber is resident of an International Jurisdiction (defined in this Subscription to mean a country other than Canada or the United States) and as such:
(i) the Subscriber is knowledgeable of, or has been independently advised as to, the International Securities Laws (which is defined in this Subscription to mean, in respect of each and every offer or sale of Special Notes, the securities legislation having application and the rules, policies, notices and orders issued by the securities regulatory authorities having jurisdiction over the Subscriber and the Private Placement, other than the laws of Canada and the U.S., which would apply to this subscription, if there are any);
(ii) the Subscriber is purchasing the Special Notes pursuant to exemptions from any prospectus, registration or similar requirements under the International Securities Laws of the International Jurisdiction and or, if such is not applicable, the Subscriber is permitted to purchase the Special Notes under the International Securities Laws of the International Jurisdiction without the need to rely on exemptions;
(iii) the International Securities Laws do not require the Company or to make any filings or seek any approvals of any kind whatsoever from any regulatory authority of any kind whatsoever in the International Jurisdiction;
(iv) that any the Securities are being acquired for investment only and not with a view to resale and distribution and the distribution of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of Subscriber by the Company on any stock exchange or automated dealer quotation system.complies with all International Securities Laws;
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Seven Seas Petroleum Inc)
Representations, Warranties and Covenants of the Subscriber. The Subscriber, on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom it is acting, hereby represents and warrants to, and covenants with, the Corporation as follows as at the date hereof and as at the Closing Time and acknowledges that the Corporation and its counsel, are relying on such representations and warranties in connection with the transactions contemplated herein:
(a) The Subscriber hereby represents and (if applicable) each beneficial purchaser for whom it is acting is resident or, if not an individual, has its head office, in the jurisdiction set out on the face page of this Subscription Agreement. The address set forth on the face page of this Subscription Agreement is the residence of the Subscriber, or the residence of any beneficial purchaser for whom the Subscriber is acting, and such address was not obtained or used solely for the purpose of acquiring Units and the Subscriber and any beneficial purchaser was solicited to purchase Units, placed the buy order for the Subscribed Units and executed this Subscription Agreement, solely in such jurisdiction.
(b) The Subscriber and each beneficial purchaser for whom it is acting is not a U.S. Person and the Subscriber is not purchasing Units for the account or benefit of a U.S. Person, was not offered the Units in the United States and did not execute this Subscription Agreement in the United States.
(c) The Subscriber, on its own behalf and (if applicable) on behalf of each beneficial purchaser for whom it is acting, represents, warrants and certifies as set out in Schedule "A" hereto and further certifies that the Subscriber or (if applicable) each such beneficial purchaser, as the case may be, falls into one or more of the categories of prospectus exempt purchasers listed in Schedule "A" hereto as indicated on Schedule "A" hereto, which has been executed and delivered with this Subscription Agreement.
(d) The Subscriber, on its own behalf and (if applicable) ob behalf of each beneficial purchaser for whom it is acting, has duly and properly completed, executed and delivered to the Corporation within applicable time periods, the certificate and covenants with form set forth in Schedule "A" hereto and the Company (which representations, warranties and covenants shall survive certifications contained therein and in this Subscription Agreement are true and correct as at the Closing) that:date hereof and will be true and correct at the Closing Time.
(be) The Subscriber confirms that the Units have not been offered to the Subscriber has or any beneficial purchaser for whom it is acting in the legal capacity United States and competence that this Subscription Agreement was not signed in the United States.
(f) The execution and delivery of this Subscription Agreement, the performance and compliance with the terms hereof, the subscription for and purchase of the Subscribed Units and the completion of the transactions described herein by the Subscriber will not result in any material breach of, or be in conflict with or constitute a material default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a material default under any term or provision of the constating documents, by-laws or resolutions of the Subscriber or any beneficial purchaser for whom the Subscriber is acting, the Securities Laws or any other laws applicable to enter into the Subscriber or any beneficial purchaser for whom the Subscriber is acting, any agreement to which the Subscriber or any beneficial purchaser for whom the Subscriber is acting is a party, or any judgment, decree, order, statute, rule or regulation applicable to the Subscriber or any beneficial purchaser for whom the Subscriber is acting.
(g) In the case of a subscription for the Subscribed Units by the Subscriber acting as trustee or agent (including, for greater certainty, a portfolio manager or comparable adviser) for a principal, the Subscriber is duly and properly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such subscription on behalf of such beneficial purchaser, who is purchasing as principal for its own account, not for the benefit of any other Person and not with a view to take all actions the resale or distribution of the Underlying Securities or Warrant Shares, and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of and constitutes a legal, valid and binding agreement of such principal, enforceable in accordance with its terms against such principal, and the Subscriber acknowledges that the Corporation and/or the Agent may be required pursuant hereto and, if by law to disclose the identity of such beneficial purchaser for whom the Subscriber is acting;
(h) In the case of a subscription for the Subscribed Units by the Subscriber acting as principal, this Subscription Agreement has been duly and properly authorized, executed and delivered by, and constitutes a legal, valid and binding agreement of, the Subscriber. This Subscription Agreement is enforceable in accordance with its terms against the Subscriber.
(i) If the Subscriber is:
(i) a corporation, it the Subscriber is duly incorporated and is validly subsisting under the laws of its jurisdiction of incorporation and has all necessary approvals by its directors, shareholders requisite legal and others have been obtained corporate power and authority to authorize execution execute and performance of deliver this Subscription Agreement on behalf of Agreement, to subscribe for the Subscriber;
(c) the entering into of this Subscription Agreement Subscribed Units as contemplated herein and the transactions contemplated hereby do not result in the violation of any of to observe and perform its obligations under the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(iii) the sale a partnership, syndicate or other form of the Shares to unincorporated organization, the Subscriber as contemplated in has the necessary legal capacity and authority to execute and deliver this Subscription Agreement complies with or and to observe and perform its covenants and obligations hereunder and has obtained all necessary approvals in respect thereof; or
(iii) an individual, the Subscriber is exempt from the applicable securities legislation of the jurisdiction full age of residence of the Subscriber;majority and is legally competent to execute this Subscription Agreement and to observe and perform his or her covenants and obligations hereunder.
(j) There is no person acting or purporting to act in connection with the transactions contemplated herein who is entitled to any brokerage or finder's fee. If any person establishes a claim that any fee or other compensation is payable in connection with this subscription for the Subscribed Units, the Subscriber is outside covenants to indemnify and hold harmless the United States when receiving Corporation with respect thereto and executing this Subscription Agreement and is acquiring with respect to all costs reasonably incurred in the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation defence thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;.
(k) the The Subscriber is not, with respect to the Corporation or any of its affiliates, a Control Person and will not an underwriter of, or dealer in, the common shares become a Control Person by virtue of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution purchase of the Shares;Subscribed Units, and does not intend to act in concert with any other person to form a Control Person of the Corporation.
(l) The Subscriber is not purchasing Units with knowledge of any material fact or information concerning the Subscriber (i) is able Corporation which has not been generally disclosed to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;public.
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no No person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Units or Underlying Securities;
(ii) that any person will refund the purchase price of any of the Securities;Subscription Price; or
(iii) as to the future price or value of the Units or the Underlying Securities.
(n) This subscription for Units has not been made through or as a result of, and the distribution of Units is not being accompanied by, any form of advertisement, including, without limitation, in printed public media, radio, television, internet or telecommunications, including electronic display, or as part of a general solicitation.
(o) The funds representing the Subscription Price which will be advanced by the Subscriber will not represent proceeds of crime for the purposes of the Securities; or
Proceeds of Crime (ivMoney Laundering) and Terrorist Financing Act (Canada) (the "PCMLA") and the Subscriber acknowledges that the Corporation may in the future be required by law to disclose the Subscriber's name and other information relating to this Subscription Agreement and the Subscriber's subscription hereunder, on a confidential basis, pursuant to the PCMLA. To the best of its knowledge, none of the subscription funds to be provided by the Subscriber (i) have been or will be obtained or derived, directly or indirectly, as a result of illegal activities under the laws of Canada, the United States of America, or any other jurisdiction, or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriber, and the Subscriber shall promptly notify the Corporation if the Subscriber discovers that any of the Securities representations set forth in subparagraphs (i) and (ii) ceases to be true and provide the Corporation with appropriate information in connection therewith.
(p) The delivery of this subscription, the acceptance hereof by the Corporation and the issuance of Subscribed Units to the Subscriber complies with all applicable laws of the Subscriber's jurisdiction of residence and domicile and will be listed and posted for trading on any stock exchange not cause the Corporation or automated dealer quotation system or that application has been made to list and post any of its officers or directors to become subject to or require any disclosure, prospectus or other reporting requirement to which the Securities of Corporation is not currently subject.
(q) If the Company on any stock exchange Subscriber is not an individual, the Subscriber was not created or automated dealer quotation systemis not being used solely to purchase or hold the Subscribed Units and has a bona fide purpose other than investing in the Subscribed Units.
Appears in 1 contract
Samples: Subscription Agreement (Stellar Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(ed) the Subscriber is not acquiring the Securities pursuant to an exemption from Shares for the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscriptionaccount or benefit of, anddirectly or indirectly, any U.S. Person, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationterm is defined in Regulation S;
(fe) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(gf) the Subscriber is not a U.S. Person, as that term is defined in Regulation S;
(hg) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(ih) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber; CW656360.1 - -
(i) the Subscriber is acquiring the Shares for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Shares in the United States or to U.S. Persons, as that term is defined in Regulation S;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber an affiliate of any such underwriter of or dealer in the Shares, nor is it participating, pursuant to a contractual agreement or otherwise, in the any distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act;
(n) if the Subscriber is acquiring the Shares as a fiduciary or agent for one or more investor accounts, the Subscriber 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;
(o) the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that following the period of restriction from sale or transfer of the Shares described in subsection 1.4 of this Subscription, the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(np) in addition to the restrictions on sale or transfer in subsection 1.4 of this Subscription, the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(q) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
CW656360.1 - -
(r) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(s) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(ot) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company Shares on any stock exchange or automated dealer quotation system; except that the Company’s Common Stock is currently approved for trading on the OTC Bulletin Board.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Global Energy Inc)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representationsrepresents, warranties and covenants shall survive with and to the ClosingCompany as follows:
(a) that:Subscriber is at least eighteen (18) years of age and is under no legal disability nor is Subscriber subject to any order which would prevent or interfere with it’s execution or delivery of this Agreement.
(b) Subscriber has received a copy of the Prospectus dated [___________], 20[__], or the Company has made available to the Subscriber has an electronic version thereof as filed by the legal capacity and competence Company with the Commission, prior to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if or in connection with the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;Agreement.
(c) The Subscriber acknowledges and agrees that the entering into of subscription hereunder is irrevocable, except as required by applicable law, and that this Subscription Agreement and shall survive the transactions contemplated hereby do not result in the violation of any death or disability of the terms undersigned and provisions of any law applicable shall be binding upon and inure to the Subscriber or benefit of any agreementhis heirs, written or oralexecutors, to which the Subscriber may be a party or by which the Subscriber is or may be bound;administrators, successors, legal representatives and permitted assigns.
(d) The Subscriber understands that the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and subscription made hereby is not binding agreement of upon the Subscriber enforceable against Company until accepted by the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, andCompany, as a consequence, evidenced by the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided delivery to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares Company’s signed counterpart to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation executed by a duly authorized officer of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes onlyCompany, and not with a view to, that the Company has the right to accept or for, resale, distribution or fractionalisation thereofreject this subscription, in whole or in part, in its sole and complete discretion.
(e) The Subscriber understands that (i) if this subscription is rejected in whole, the Company shall return to Subscriber, without interest, the payment tendered by Subscriber for the Shares, in which case the Company and Subscriber shall have no further obligation to each other person hereunder or (ii) in the event of a partial rejection of this subscription, Subscriber’s payment will be returned to Subscriber, without interest, whereupon Subscriber agrees to deliver a new payment in the amount of the purchase price for the number of Shares to be purchased hereunder following a partial rejection of this subscription.
(f) Except as set forth in the Prospectus, no representations or warranties, oral or otherwise, have been made to Subscriber by the Company or any other person, whether or not associated with the Company or the Offering. In entering into this transaction, Subscriber is not relying upon any information, other than that contained in the Prospectus and the exhibits thereto and the results of any independent investigation conducted by Subscriber at Subscriber’s sole discretion and judgment.
(g) Subscriber is aware that the purchase of the Shares is a speculative investment involving a high degree of risk and that there is no guarantee that the Subscriber will realize any gain from this investment and that the Subscriber could lose the total amount of the Subscriber's investment.
(h) Subscriber understands that no federal or state agency has made any finding or determination regarding the fairness of this Offering, or any recommendation or endorsement of the Shares or the Offering.
(i) FOR PARTNERSHIPS, CORPORATIONS, TRUSTS, OR OTHER ENTITIES ONLY: If the Subscriber is a direct partnership, corporation, trust, or indirect beneficial interest other entity, (i) the Subscriber has the full power and authority to execute this Agreement on behalf of such entity and to make the representations and warranties made herein on its behalf, and (ii) this investment in the Company has been affirmatively authorized, if required, by the governing board of such Shares;entity and is not prohibited by the governing documents of the entity.
(j) The address shown under the Subscriber's signature at the end of this Agreement is the Subscriber's principal residence if he or she is an individual, or its principal business address if a corporation or other entity.
(k) All information herein concerning the Subscriber is not an underwriter of, or dealer in, the common shares correct and complete as of the Company, nor is date this Agreement was executed by the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation systemSubscriber.
Appears in 1 contract
Samples: Subscription Agreement (Appsoft Technologies, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) ), and acknowledges that the Company is relying thereon, that:
(a) the Subscriber is not a U.S. Person as that term is defined in Regulation S;
(b) the Subscriber is not acquiring the Note for the account or benefit of, directly or indirectly, any U.S. Person as that term is defined in Regulation S;
(c) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement and the sale of the Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(d) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(ce) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(df) the Subscriber has duly executed and delivered this Subscription Agreement and upon acceptance thereof by the Company it constitutes will constitute a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(eg) the Subscriber is acquiring the Securities pursuant to an exemption from the registration as principal for its own account for investment purposes only and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account of any other person and not for distribution, assignment or benefit ofresale to others, directly and no other person has a direct or indirectlyindirect beneficial interest in such Securities, and it has not subdivided its interest in the Securities with any U.S. Person;
(g) the Subscriber is not a U.S. Personother person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares Note as principal for the Subscriber’s own account, account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities;
(i) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Forms 00-X, 00-X, 0-X and any other filings filed with the SEC;
(j) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Company;
(k) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(n) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(o) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company’s Shares, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the Shares;
(lp) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of restricted period after the date of original issuance of the Securities (the six month period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state securities laws;
(q) the Subscriber agrees not to engage in any hedging transactions involving any of the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
(r) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) 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 SharesSecurities and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(ms) the Subscriber acknowledges that will indemnify the Subscriber has not acquired the Shares as a result ofCompany against, and will not itself engage inhold the Company and, where applicable, its respective directors, officers, employees, agents, advisors and shareholders harmless from, any “directed selling efforts” and all loss, liability, claim, damage and expense whatsoever (as defined including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in Regulation S under the 0000 Xxxinvestigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) in the United States in respect arising out of or based upon any representation or warranty of the Shares which would include Subscriber contained herein or in 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 the Shares; provided, however, that document furnished by the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and Company in connection herewith being untrue in any applicable state and federal securities laws material respect or under an exemption from such registration requirements and as otherwise provided hereinany breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(nt) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(ou) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;,
(iii) as to the future price or value of any of the Securities; , or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system, except that currently the Company’s common shares are quoted on the over-the- counter market operated by the Over-The-Counter Bulletin Board operated by FINRA.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. By executing this Subscription Agreement, the Subscriber (aon its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) The Subscriber hereby represents and represents, warrants to and covenants with to the Company Partnership (which representations, warranties and covenants shall survive acknowledges that the ClosingPartnership and its counsel are relying thereon) that:
(a) if the Subscriber is an individual, the Subscriber is of the full age of majority in the jurisdiction in which this Subscription Agreement is executed and is legally competent to execute and deliver this Subscription Agreement, the Partnership Agreement and all other agreements, instruments and other documents contemplated hereby and thereby, and to perform all of its obligations hereunder, and to undertake all actions required of the Subscriber hereunder;
(b) if the Subscriber is not an individual, the Subscriber has the requisite power, authority, legal capacity and competence to enter into execute and execute deliver this Subscription Agreement, the Partnership Agreement and all other agreements, instruments and other documents contemplated hereby and thereby, to take perform all of its obligations hereunder, and to undertake all actions required pursuant hereto andof the Subscriber hereunder, and all necessary approvals of its directors, partners, shareholders, trustees or otherwise with respect to such matters have been given or obtained;
(c) if the Subscriber is a corporationbody corporate, it the Subscriber is duly incorporated and 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 incorporation;
(d) this Subscription Agreement on behalf of and the Partnership Agreement have been duly and validly authorized, executed and delivered by, and constitute a legal, valid, binding and enforceable obligation of, the Subscriber;
(ce) if the Subscriber is acting as agent or trustee for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documents in connection with such subscription on behalf of such principal, and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of, and constitutes a legal, valid, binding and enforceable obligation of, such principal;
(f) the entering into execution, delivery and performance by the Subscriber of this Subscription Agreement and of the Partnership Agreement and the completion of the transactions contemplated hereby do not and will not result in the a violation of any of the terms and provisions of any law law, regulation, order or ruling applicable to the Subscriber, and do not and will not constitute a breach of or default under any of the Subscriber’s constating documents (if the Subscriber is not an individual) or of any agreement, written or oral, agreement to which the Subscriber may be is a party or by which the Subscriber it is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) if the Subscriber is not a U.S. Person;
(h) Purchaser, the Subscriber is resident in either purchasing the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares L.P. Units as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, account or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as deemed under NI 45-106 to be capable of evaluating purchasing the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber has not acquired the Shares L.P. Units as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities principal and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral representationseither:
(i) that any person will resell an “accredited investor” as defined in NI 45-106 and was not created, and is not being used, solely to purchase or repurchase any hold securities as an “accredited investor” described in paragraph (m) of the Securities;definition of “accredited investor” in NI 45-106, and:
X. has duly completed, executed, and delivered to the Partnership the “Representation Letter for Accredited Investors” and “Certificate of Accredited Investor” in the forms attached hereto, respectively, as Schedule A and Appendix I to Schedule A; and
B. if the Subscriber is an individual relying on paragraph (iij), (k) that any person will refund the purchase price of any or (l) of the Securities;
definition of “accredited investor” in NI 45-106 (iii) as set out in Appendix I to Schedule A of this Subscription Agreement), has duly, completed, and executed the future price “Form 45-106F9 – Form for Individual Accredited Investors”, attached hereto as Appendix II to Schedule A; L.P. Units is not less than $150,000 and the Subscriber was not created or value used solely to acquire securities or to permit purchases of any securities without a prospectus in reliance on an exemption from the prospectus requirements of the Securitiesapplicable securities legislation; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) ), as at the time of Closing and as of the date of the acquisition of any Securities, that:
(a) the Subscriber is not a U.S. Person and is executing this Agreement outside of the U.S.;
(b) the Subscriber is not resident in the U.S. or Canada;
(c) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cd) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if applicable, the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(de) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Personhas received and carefully read this Agreement;
(g) the Subscriber is not a U.S. Personaware that an investment in the Company is speculative and involves certain risks (including those risks disclosed in the Public Record), including the possible loss of the entire investment;
(h) the Subscriber is resident has made an independent examination and investigation of an investment in the jurisdiction set out under Securities and the heading “Name Company and Address of agrees that the Company will not be responsible in any way whatsoever for the Subscriber” on ’s decision to invest in the signature page of this Subscription AgreementSecurities and the Company;
(i) the sale of Subscriber will be purchasing the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal Securities for the Subscriber’s its own account, account for investment purposes only, only and not with a view tofor the account of any other person and not for distribution, assignment or for, resale, distribution or fractionalisation thereof, in whole or in partresale to others, and no other person has a direct or indirect beneficial interest is such Securities, and the Subscriber has not subdivided his interest in such Sharesthe Securities with any other person;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(lj) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesSecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(k) the Subscriber is not an underwriter of, or dealer in, any of the Securities, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Securities or any of them;
(l) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Securities as a result of any form of general solicitation or general advertising, including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media, or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(m) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities,
(ii) that any person will refund the purchase price of any of the Securities, or
(iii) as to the future price or value of any of the Securities;
(n) the Subscriber understands and agrees that none of the Securities have been registered under the 1933 Act, or under any state securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state, provincial and foreign securities laws;
(o) the Subscriber understands and agrees that offers and sales of any of the Securities prior to the expiration of the period specified in Regulation S (such period hereinafter referred to as the “Distribution Compliance Period”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(p) the Subscriber acknowledges that the Subscriber it has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nq) hedging transactions involving the Securities may not be conducted unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable securities laws;
(r) the Subscriber is not aware of any advertisement of any knowledgeable of, or has been independently advised as to, the applicable laws of the Securities and securities regulators having application in the jurisdiction in which the Subscriber is not acquiring resident (the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(o“International Jurisdiction”) no person has made which would apply to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any offer and sale of the Securities;
(iis) that the Subscriber will be purchasing the Securities pursuant to exemptions from prospectus or equivalent requirements under applicable laws or, if such is not applicable, the Subscriber is permitted to purchase the Securities under the applicable laws of the securities regulators in the International Jurisdiction without the need to rely on any person will refund exemptions;
(t) the purchase price applicable laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the offer, issue, sale or resale of any of the Securities;
(iiiu) as to the future price or value of any purchase of the Securities; Securities by the Subscriber does not trigger:
(i) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or
(ivii) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities continuous disclosure reporting obligation of the Company on in the International Jurisdiction; and
(v) the Subscriber will, if requested by the Company, deliver to the Company, a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (s), (t) and (u) above to the satisfaction of the Company, acting reasonably.
6.2 In this Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for the purpose of the Agreement includes any stock exchange or automated dealer quotation systemperson in the United States.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (ALKALINE WATER Co INC)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber it has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or, if the Subscriber is a corporate entity, the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) the Subscriber in accordance with its termshas received and carefully read this Subscription Agreement;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “"Name and Address of Subscriber” " on the signature page of this Subscription Agreement;
(f) the Subscriber:
(i) is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the Subscriber is resident (the "International Jurisdiction") which would apply to the acquisition of the Shares,
(ii) is purchasing the Shares pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Subscriber is permitted to purchase the Shares under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions,
(iii) acknowledges that the applicable securities laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of any of the Shares, and
(iv) represents and warrants that the acquisition of the Shares by the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or
B. any continuous disclosure reporting obligation of the Company in the International Jurisdiction, and
(v) the Subscriber will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Company, acting reasonably;
(g) the Subscriber is acquiring the Shares as principal for investment only and not with a view to resale or distribution;
(h) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the sale Subscriber has made an independent examination and investigation of an investment in the Shares to and the Subscriber as contemplated Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of any way whatsoever for the Subscriber's decision to invest in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is outside able to bear the United States when receiving and executing this Subscription Agreement and is acquiring economic risks of an investment in the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesan indefinite period of time;
(k) the Subscriber is not an underwriter ofunderstands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and the Questionnaires and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or dealer inhave been breached, the common shares of Subscriber shall promptly notify the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges understands and agrees that the Subscriber has not acquired none of the Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S have been registered under the 0000 Xxx) 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in respect accordance with the provisions of Regulation S, pursuant to an effective registration statement under the Shares which would include any activities undertaken for the purpose of1933 Act, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Shares pursuant to the 1933 Act and any in each case only in accordance with applicable state and federal provincial securities laws or under an exemption from such registration requirements and as otherwise provided hereinlaws;
(n) by completing the Questionnaires, the Subscriber is representing and warranting that it is an "accredited investor" as that term is defined in Regulation D of the 1933 Act and in NI 45-106;
(o) all information contained in the Questionnaires is complete and accurate and may be relied upon by the Company, and the Subscriber will notify the Company immediately of any material change in any such information occurring prior to the closing of the purchase of the Shares;
(p) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(r) the Subscriber is not aware of any advertisement of any of the Securities Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(os) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTCBB; and
(t) the Subscriber acknowledges and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Subscription Agreement:
(i) a fully completed and executed Questionnaire in the form attached hereto as Exhibits A and B, and
(ii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as a qualified investor.
6.2 In this Subscription Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for the purpose of the Subscription Agreement includes any person in the United States.
Appears in 1 contract
Samples: Loan Conversion Agreement (Counterpath Solutions, Inc.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is resident in the jurisdiction set forth on page 2 underneath the Subscriber’s name and signature;
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(c) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(d) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in anyway whatsoever for the Subscriber’s decision to invest in the Shares and the Company;
(e) all information contained in the Questionnaires are complete and accurate and may be relied upon by the Company and the Subscriber will notify the Company immediately of any material change in any such information occurring prior to the closing of the purchase of the Shares;
(f) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dg) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsSubscriber;
(eh) it understands and agrees that none of the Subscriber is acquiring Shares have been registered under the Securities pursuant to an exemption from the registration and prospectus requirements of applicable 1933 Act or any state securities legislation in all jurisdictions relevant to this Subscriptionlaws, and, as a consequenceunless so registered, none may be offered or sold in the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit ofUnited States or, directly or indirectly, any to U.S. Person;
Persons (gas defined herein) except pursuant to an exemption from, or in a transaction not subject to, the Subscriber is not a U.S. Person;
(h) Registration Requirements of the Subscriber is resident 1933 Act and in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreementeach case only in accordance with state securities laws;
(i) the sale of it is purchasing the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s its own account, account for investment purposes only, only and not with a view tofor the account of any other person and not for distribution, assignment or for, resale, distribution or fractionalisation thereof, in whole or in partresale to others, and no other person has a direct or indirect beneficial interest in is such Shares, and the Subscriber has not subdivided his interest in the Shares with any other person;
(kj) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) it is able to fend for him/her/itself in the Subscription; (ii) has such knowledge Subscription and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(k) if it is acquiring the Shares as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgments, representations and agreements on behalf of such account;
(l) it understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgments, representations and agreements contained in sections 4 and 6 hereof and agrees that if any of such acknowledgments, representations and agreements are no longer accurate or have been breached, it shall promptly notify the Company;
(m) the Subscriber acknowledges that the Subscriber 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 0000 Xxx) in the United States in respect 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio radio, or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(on) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SecuritiesShares, except as noted in Section 7, below;
(ii) that any person will refund the purchase price of any of the SecuritiesShares;
(iii) as to the future price or value of any of the SecuritiesShares; or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company on any stock exchange or automated dealer quotation system.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S and for the purpose of the Subscription includes any person in the United States.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Cheetah Oil & Gas Ltd.)
Representations, Warranties and Covenants of the Subscriber. The Subscriber hereby represents, warrants and covenants to the Company, as of the date hereof and as of the Subscription Closing, that:
(a) The Subscriber has the requisite power and authority to execute and deliver this Agreement, the Voting Agreement and the other agreements, documents and instruments contemplated hereby represents (collectively, the “Subscription Documents”), and warrants to perform the Subscriber’s obligations hereunder and covenants with thereunder, and to consummate the Company transactions contemplated hereby and thereby (which representationscollectively, warranties the “Subscription Transactions”). All action on the Subscriber’s part required for the lawful execution and covenants shall survive delivery of each of the Closing) that:Subscription Documents has been taken. Each Subscription Document has been duly and validly executed and delivered by the Subscriber.
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto andThis Agreement, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in other Subscription Documents, constitute the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and legally binding agreement obligation of the Subscriber enforceable against the Subscriber in accordance with their respective terms and conditions (except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles).
(c) Neither the execution and delivery of this Agreement or any other Subscription Document, nor the consummation of the Subscription Transactions, will (i) violate any law, rule, regulation or other restriction of any governmental authority to which the Subscriber is subject or any provision of the Subscriber’s governing documents, if any, or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which the Subscriber is a party or by which the Subscriber is bound or to which any of the Subscriber’s assets is subject. The Subscriber is not required to give any notice to, make any filing with or obtain any authorization, consent or approval of any governmental authority in order for the Parties to consummate the Subscription Transactions.
(d) There is no action pending or, to the Subscriber’s knowledge, threatened, against the Subscriber, which, if adversely determined would (i) delay, hinder or prevent the consummation of the Subscription Transactions or (ii) have, individually or in the aggregate with all other such actions, a material adverse effect on the Subscriber’s ability to perform its terms;obligations under the Subscription Documents.
(e) the The Subscriber is acquiring an “accredited investor” as such term is defined in Rule 501 under the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;Act.
(f) The Subscriber has such knowledge, experience and skill in evaluating and investing in securities, based on actual participation in financial, investment and business matters, so that the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective an investment in the Company and the Purchased Shares and can bear the economic risk of an investment in the Purchased Shares; . Subscriber understands that its investment in the Purchased Shares involves a high degree of risk and (iii) has the ability is able to bear the economic risks risk of its prospective such investment and can afford for an indefinite period of time, including the risk of a complete loss of such investment;the Subscriber’s investment in the Company and the Purchased Shares. Subscriber acknowledges that no guarantees have been made or can be made with respect to the future value, if any, of the Purchased Shares, or the profitability or success of the Company’s business.
(mg) The Subscriber has received, read and understood the Private Placement Memorandum of the Company provided to the Subscriber in connection with this Subscription (the “PPM”), Voting Agreement and this Agreement. The Subscriber had an opportunity to discuss the Company’s business, management and financial affairs and the merits of the Company’s investment to which the Purchased Shares and this Subscription relate with the directors, officers and management of the Company. The Subscriber has also had the opportunity to ask questions of and receive answers from the Company and its management regarding the terms and conditions of this investment.
(h) The Subscriber acknowledges that, except for the representations and warranties contained in Xxxxxxx 0, xxxx of the Company, any of its Affiliates or any other Person has made, and the Subscriber has not relied on, any other express or implied representation or warranty by or on behalf of the Company, any of its Affiliates or any other Person, and none of the Company, any of its Affiliates or any other Person, directly or indirectly, has made, and the Subscriber has not relied on, any representation or warranty regarding any pro forma financial information, financial projections or other forward-looking statements of the Company, and the Subscriber will make no claim with respect thereto.
(i) The Subscriber is acquiring the Purchased Shares for the Subscriber’s own account, not as a nominee or agent, with the present intention of holding such securities for purposes of investment, and not with a view to the sale or distribution of any part thereof, and that the Subscriber has no intention of selling, granting any participation in, or otherwise distributing such securities in a public distribution in violation of the federal securities laws or any applicable state securities laws.
(j) The Subscriber understands and acknowledges that the offering of the Purchased Shares pursuant to this Agreement will not be registered under the Securities Act and the rules and regulations promulgated thereunder on the grounds that the offering and sale of the Purchased Shares contemplated by the Subscription Transactions are exempt from registration pursuant to Section 4(a)(2) of the Securities Act, Regulation D, and that the Company’s reliance upon such exemption is predicated upon the Subscriber’s representations set forth in this Agreement. The Subscriber acknowledges that the Purchased Shares are deemed to constitute “restricted securities” under Rule 144 promulgated under the Securities Act (“Rule 144”). The Subscriber further understands that no public market now exists for any of the securities issued by the Company and that the Company has not acquired made any assurances that a public market will ever exist for its securities.
(k) The Subscriber understands that the Purchased Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S must be held indefinitely unless they are subsequently registered under the 0000 Xxx) in the United States in respect of the Shares which would include any activities undertaken for the purpose of, Securities Act or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements is available. The Subscriber has been advised or is aware of the provisions of Rule 144, as in effect from time to time, which permit limited resale of securities purchased in a private placement subject to the satisfaction of certain conditions, including, among other things, the availability of certain current public information about the Company, the resale occurring following the required holding period under Rule 144, and as otherwise provided herein;the number of securities being sold during any three (3) month period not exceeding specified limitations.
(l) The Subscriber acknowledges and agrees that the Purchased Shares are subject to restrictions on transfer set forth in the Voting Agreement.
(m) The office or offices of the Subscriber in which its investment decision was made is located at the address or addresses of the Subscriber set forth on the signature page attached hereto.
(n) To the extent the Purchased Shares are certificated, each certificate or instrument representing the Purchased Shares, if certificates representing the Purchased Shares are issued, shall be imprinted with a legend in substantially the following form: “THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON , 2021 AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT AND SUCH OTHER APPLICABLE LAWS OR EXEMPTION THEREFROM. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SPECIFIED IN THE AMENDED AND RESTATED VOTING AGREEMENT OF THE ISSUER OF THE SECURITIES (THE “COMPANY”), DATED AS OF _____________, 2021, AS AMENDED AND MODIFIED FROM TIME TO TIME, AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH RESTRICTIONS HAVE BEEN SATISFIED WITH RESPECT TO ANY TRANSFER. A COPY OF SUCH RESTRICTIONS SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.”
(o) The Subscriber acknowledges that the Company is not being registered as an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”). The Subscriber is not an “investment company” under the 1940 Act or a Person which would be an “investment company” but for the exceptions provided in Section 3(c)(1) or 3(c)(7) of the 1940 Act. The Subscriber would be considered, and the interest in the Company held by the Subscriber would be considered to be beneficially owned by, “one person” for purposes of Section 3(c)(1) of the 1940 Act.
(p) The Subscriber does not control, nor is controlled by or under common control with, any other investors in the Company.
(q) If the Subscriber is, for United States federal income tax purposes, a partnership, grantor trust, S corporation or other flow-through entity, the Subscriber represents and warrants that (i) substantially all of the value of each of the Subscriber's beneficial owner’s interest (direct or indirect) in the entity that is acquiring the Purchased Shares is not, and will not be at any time during the term of the Company, attributable to such entity’s interest (direct or indirect) in the Company, and (ii) it has not been formed and has not and will not be utilized for the purpose of permitting the Company to satisfy the 100-partner limitation set forth in Treasury Regulation Section 1.7704-1(h)(1)(ii).
(r) If the Subscriber is not a natural person, (i) its equityholders, partners or other holders of equity or beneficial interests are not able to decide individually whether to participate in the Subscriber’s investment in the Company, (ii) the Subscriber is not aware of any advertisement of any a participant-directed defined contribution plan, (iii) the amount of the Subscriber’s capital commitment in the Company does not exceed forty percent (40%) of the Subscriber’s total assets and (iv) the Subscriber was not created solely for the purpose of making this investment in the Company.
(s) None of the Subscriber’s contributions to the Company will consist of “proceeds of municipal securities,” within the meaning of Rule 15Bal-1(m)(1) under the Securities and Exchange Act of 1934.
(t) The Subscriber is not acquiring investing in the Shares Company as a result of any form of general solicitation or general advertising advertising, including advertisementswithout limitation, articlesany (i) advertisement, notices article, notice or other communications published in any newspaper, magazine or similar other media (including any publications via the Internet and any social media platforms) or broadcast over television, radio or television, other media or any (ii) seminar or meeting whose attendees have been were invited by any general solicitation or general advertising; and.
(ou) The Subscriber is not, and will not hereafter permit itself to become, a “benefit plan investor” as defined in Section 3(42) of the Employee Retirement Income Security Act, as amended.
(v) None of the cash or property that the Subscriber has paid, will pay or will contribute has been or shall be derived from, or related to, an activity that is deemed criminal under the laws and regulations of the United States, and no person has made contribution or payment by the Subscriber to the Company and no distribution to the Subscriber by the Company shall cause the Company to be in violation of any written law relating to terrorism, money laundering or oral representations:similar activities, including, without limitation, 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 (collectively, “AML Laws”).
(w) The Subscriber will (i) that any person will resell or repurchase promptly notify the Company if any of the Securities;
representations made in this Section 2 cease to be true and accurate regarding the Subscriber, (ii) provide the Company with any additional information that any person will refund the purchase price of any Company deems necessary or appropriate to ensure compliance with all AML Laws, including, without limitation, verifying the Subscriber’s identity or the identity of the Securities;
Subscriber’s beneficial owners, if any, and the source of funds used to purchase the Purchased Shares, (iii) as allow the Company to the future price or value of undertake any of the Securities; or
actions whatsoever it considers appropriate to ensure compliance with all AML Laws, and (iv) acknowledges that the Company may release confidential information about the Subscriber, and, if applicable, any of its owners, legal or beneficial, to proper authorities if the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or Company determines that application has been made to list and post any of it is in the Securities best interests of the Company on in light of the relevant AML Laws.
(x) The Subscriber certifies under penalties of perjury that the Subscriber is a United States Person. For this purpose, “United States Person” means (i) a citizen or resident of the United States, (ii) an entity created or organized in or under the laws of the United States or any stock exchange political subdivision thereof that is treated for United States federal income tax purposes as a corporation or automated dealer quotation systempartnership, (iii) a trust, if either the (A) administration of which a court within the United States is able to exercise primary supervision over or for which one or more United States Persons (including individual citizens or residents of the United States) has the authority to control all substantial decisions or (B) trust has a valid election in effect to be treated as a United States Person or (iv) an estate the income of which is or will be subject to United States federal income taxation regardless of its source.
Appears in 1 contract
Samples: Stock Subscription Agreement
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber is acquiring the Securities as principal for the Subscriber's own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Securities;
(b) if the Subscriber is acquiring the Securities as a fiduciary or agent for one or more investor accounts, the Subscriber has sole investment discretion with respect to each such account and the Subscriber has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account;
(c) the residence of the Subscriber set forth on the execution page hereof is the true and correct residence of the Subscriber and he has no present intention to become resident or domiciled in any other province, state or other jurisdiction;
(d) should there be any change in any of the information which the Subscriber has provided to the Company prior to the acceptance by the Company of this subscription, the Subscriber will immediately provide such information to the Company by telephone prior to such acceptance and will confirm such information in writing;
(e) the Subscriber, if an individual, has attained the age of majority and has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cf) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dg) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. PersonSubscriber;
(h) the Subscriber is resident aware that an investment in the jurisdiction set out under Company is speculative and involves certain risks, including the heading “Name and Address possible loss of Subscriber” on the signature page of this Subscription Agreementinvestment;
(i) the sale Subscriber, together with his advisor(s), if any, has the requisite knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the Shares to investment in the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from Securities and the applicable securities legislation of the jurisdiction of residence of the SubscriberCompany;
(j) the Subscriber is outside the United States when receiving (1) has adequate net worth and executing means of providing for its current financial needs and possible personal contingencies, (2) has no need for liquidity in this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes onlyinvestment, and not with a view to, or for, resale, distribution or fractionalisation thereof, (3) is able to bear the economic risks of an investment in whole or in part, and no other person has a direct or indirect beneficial interest in such Sharesthe Securities for an indefinite period of time;
(k) the Subscriber has made an independent examination and investigation of an investment in the Securities and the Company and has depended on the advice of his legal and financial advisors and agrees that the Company will not be responsible in anyway whatsoever for the Subscriber's decision to invest in the Securities and the Company;
(l) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentSecurities;
(m) the Subscriber acknowledges understands and agrees that the Subscriber has not acquired the Shares as a result of, and Company will not itself engage in, refuse to register any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect transfer of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected Securities to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares a U.S. Person not made pursuant to an effective registration of the Shares pursuant to statement under the 1933 Act and any applicable state and federal securities laws or under pursuant to an available exemption from such the registration requirements and as otherwise provided hereinof the 1933 Act;
(n) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgments, representations and agreements contained in sections 5 and 6 hereof and agrees that if any of such acknowledgments, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(o) the Subscriber is not a "control person" of the Company as defined in the B.C. Act, will not become a "control person" by virtue of this purchase of the Securities and does not intend to act in concert with any other person to form a control group;
(p) the Subscriber has no knowledge of a "material fact" or "material change" (as those terms are defined in the B.C. Act) in the affairs of the Company that has not been generally disclosed to the public, save knowledge of this particular transaction;
(q) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(or) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;; or
(iii) as to the future price or value of any of the Securities; or;
(iv) that any 6.2 In this Subscription Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S and for the purpose of the Securities will be listed and posted for trading on Subscription includes any stock exchange or automated dealer quotation system or that application has been made to list and post any of person in the Securities of the Company on any stock exchange or automated dealer quotation systemUnited States.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Esarbee Investments LTD)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ba) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and 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 Subscriber;
(cb) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(dc) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) the Subscriber has the requisite knowledge and experience in accordance with its termsfinancial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities and the Company, and the Subscriber is providing evidence of such knowledge and experience in these matters through the information requested in the Questionnaires;
(e) all information contained in the Subscriber Questionnaires is acquiring complete and accurate and may be relied upon by the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationCompany;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(jg) the Subscriber is outside acquiring the Securities for investment only and not with a view to resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Securities in the United States when receiving and executing this Subscription Agreement and or to U.S. Persons;
(h) the Subscriber is acquiring the Shares Securities as principal for the Subscriber’s own accountaccount (except for the circumstances outlined in paragraph 6.1(j)), for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such SharesSecurities;
(ki) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities;
(lj) if the Subscriber is acquiring the Securities as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber (i) is able has sole investment discretion with respect to fend for him/her/itself in each such account and it has full power to make the Subscription; foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) has such knowledge the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an “Accredited Investor”, as the term is defined in Regulation D under the 1933 Act and experience in business matters as to be capable of evaluating Multilateral Instrument 45-103 adopted by the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investmentBritish Columbia Securities Commission;
(mk) the Subscriber acknowledges that the Subscriber has not acquired the Shares Securities as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities 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 SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(nl) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingSecurities; and
(om) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities of the Company on any stock exchange or automated dealer quotation system.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Novastar Resources Ltd.)
Representations, Warranties and Covenants of the Subscriber. (a) The Subscriber hereby represents and warrants to and covenants with the Company Issuer (which representationson its own behalf and, warranties if applicable, on behalf of the Beneficial Purchaser from whom the Subscriber is contracting hereunder) that, as at the date of this Subscription Agreement and covenants shall survive at the Closing:
(a) that:the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Subscription Agreement;
(b) the Subscriber it has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsSubscriber;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration has received and prospectus requirements of applicable securities legislation in all jurisdictions relevant to carefully read this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationSubscription Agreement;
(f) the Subscriber is not acquiring aware that an investment in the Shares for Issuer is speculative and involves certain risks, including the account or benefit of, directly or indirectly, any U.S. Personpossible loss of the entire investment;
(g) the Subscriber is has made an independent examination and investigation of an investment in the Shares and the Issuer and has depended on the advice of its legal and financial advisors and agrees that the Issuer will not a U.S. Personbe responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Issuer;
(h) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is resident able to bear the economic risks of an investment in the jurisdiction set out under the heading “Name and Address Shares for an indefinite period of Subscriber” on the signature page of this Subscription Agreementtime;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(j) all information contained in the Investor Questionnaire is complete and accurate and may be relied upon by the Issuer;
(k) the Subscriber understands and agrees that the Issuer and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and the Investor Questionnaire and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Issuer;
(l) the Subscriber is purchasing the Shares for its own account for investment purposes only and not for the account of any other person and not for distribution, assignment or resale to others, and no other person has a direct or indirect beneficial interest is such Shares, and the Subscriber has not subdivided his interest in the Shares with any other person;
(m) the Subscriber acknowledges that the Subscriber has is 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 0000 Xxx) in the United States in respect of the Shares which would include any activities undertaken for the purpose an underwriter of, or that could reasonably be expected dealer in, the shares of common stock of the Issuer, nor is the Subscriber participating, pursuant to have the effect ofa contractual agreement or otherwise, conditioning the market in the United States for the resale distribution of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber has previously invested in the Issuer and/or has a pre-existing relationship with the Issuer, is not aware of any advertisement of any of the Securities Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;Shares,
(ii) that any person will refund the purchase price of any of the Securities;Shares,
(iii) as to the future price or value of any of the Securities; Shares, or
(iv) that any of the Securities Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Shares of the Company Issuer on any stock exchange or automated dealer quotation system; and
(p) the Subscriber satisfies one of clauses 0, 0 or 0 below:
(i) if the Subscriber is resident in Canada and is, or is deemed to be, purchasing the Shares as principal for its own account or for the account of a beneficial purchaser resident in Canada as set forth in this Subscription Agreement as the "Disclosed Principal" and not for the benefit of any other person and not with a view to the resale and distribution of all or any of the Shares and such resident Canadian is either:
A. purchasing the Shares for an Aggregate Subscription Amount of not less than CDN$150,000 pursuant to the prospectus exemption under section 2.10 of NI 45-106,
B. an "affiliate" of the Issuer as defined in NI 45-106, or
C. an "Accredited Investor" as defined in NI 45-106 AND HAS EXECUTED AND DELIVERED TO THE INVESTOR QUETIONNAIRE IN THE FORM ATTACHED HERETO AS SCHEDULE "A" (with the schedule initialled as indicated) indicating that the Subscriber fits within one of the categories of investor set forth therein, OR
(ii) if the Subscriber is resident in a jurisdiction OUTSIDE OF NORTH AMERICA:
A. the execution of this Subscription Agreement and the final decision by the Subscriber to acquire the Shares, together with all acts of solicitation and negotiation, were made outside of North America,
B. the Subscriber is not purchasing the Shares for the benefit of any citizen or resident of Canada, or a corporation, partnership or other entity created in or organized under the laws of Canada or any province or territory of Canada, or any U.S. Person,
C. the Subscriber is purchasing the Shares for investment only and not with a view to the resale or distribution of all or any of the Shares,
D. the purchase and sale of the Shares as contemplated in this Subscription Agreement does not contravene any of the applicable securities laws in the Subscriber's jurisdiction of residence and does not trigger:
I. any obligation on the part of the Issuer or the Agent to prepare and file a prospectus, an offering memorandum or similar document, or any other ongoing reporting requirements with respect to such purchase or otherwise, or
II. any registration or other obligation on the part of the Issuer or the Agent, and the Subscriber will provide such evidence of compliance with all such matters as the Issuer or the Agent may request prior to Closing, and
E. the Subscriber has EXECUTED AND DELIVERED TO THE INVESTOR QUESTIONNAIRE IN THE FORM ANNEXED HERETO AS SCHEDULE "A" (with the schedule initialled as indicated) indicating that the Subscriber fits within one of the categories of investor as if the Subscriber were a resident of a province or territory of Canada, OR
(iii) if the Subscriber is not purchasing as principal for its own account, then:
A. the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with the purchase of Shares on behalf of each beneficial purchaser for whom the Subscriber acts,
B. the Subscriber acknowledges that the Issuer may be required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of each beneficial purchaser of Shares for whom the Subscriber may be acting and the Subscriber has disclosed the beneficial purchaser's identity as the "Disclosed Principal",
C. the Subscriber is purchasing the Shares for investment only and not with a view to the resale or distribution of all or any of the Shares, and
D. the Subscriber is resident in, and subject to the securities laws of, the jurisdiction indicated on the face page of this Subscription Agreement as the "Subscriber's Address" and if the Subscriber is acting as agent for one or more Disclosed Principals, each Disclosed Principal is resident in and subject to the securities laws of the jurisdiction set forth in this Subscription Agreement as the "Principal's Address" and each Disclosed Principal is purchasing as a principal for its own account, not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Shares and each Disclosed Principal has complied with and satisfies the requirements of one of clauses 0 or 0 above;
(q) the Subscriber acknowledges and agrees that the Issuer shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Issuer, along with an executed copy of this Subscription Agreement:
(i) a fully completed and executed copy of each of the Investor Questionnaire in the form attached hereto as Exhibit A, and
(ii) such other supporting documentation that the Issuer or its legal counsel may request to establish the Subscriber's qualification as a qualified investor.
(r) the Subscriber is not a "U.S. Person" and is not acquiring the Shares for the account or benefit of a U.S. Person or a person in the United States;
(s) the Shares have not been offered to the Subscriber in the United States or when the Subscriber was a U.S. Person, and the individuals making the order to purchase the Shares and executing and delivering this Subscription Agreement on behalf of the Subscriber were not in the United States when the order was placed and this Subscription Agreement was executed and delivered;
(t) the Subscriber is not and will not be purchasing the Shares, directly or indirectly, for the account or benefit of a U.S. Person or any person in the United States and the Subscriber does not have any agreement or understanding (either written or oral) with any U.S. Person or a person in the United States respecting:
(i) the transfer or assignment of any rights or interests in any of the Shares
(ii) the division of profit, losses, fees, commissions, or any financial stake in connection with this Subscription Agreement, or
(iii) the voting of the Shares.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Sky Harvest Windpower Corp.)
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company Issuers (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is a U.S. Person;
(b) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationhereto, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation 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 Subscriber;
(c) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration has received and prospectus requirements of applicable securities legislation in all jurisdictions relevant to carefully read this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationAgreement;
(f) the Subscriber is not acquiring aware that an investment in the Shares for Issuers is speculative and involves certain risks (including those risks disclosed in the account or benefit ofPublic Record), directly or indirectly, any U.S. Personincluding the possible loss of the entire investment;
(g) the Subscriber is has made an independent examination and investigation of an investment in the Securities and the Issuers and agrees that the Issuers will not a U.S. Personbe responsible in any way whatsoever for the Subscriber’s decision to invest in the Securities and the Issuers;
(h) all information contained in the Questionnaires is complete and accurate and may be relied upon by the Issuers, and the Subscriber is resident will notify the Issuers immediately of any material change in any such information occurring prior to the jurisdiction set out under closing of the heading “Name and Address purchase of Subscriber” on the signature page of this Subscription AgreementSecurities;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(j) the Subscriber is outside purchasing the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal Securities for the Subscriber’s its own account, account for investment purposes only, only and not with a view tofor the account of any other person and not for distribution, assignment or for, resale, distribution or fractionalisation thereof, in whole or in partresale to others, and no other person has a direct or indirect beneficial interest in such SharesSecurities, and the Subscriber has not subdivided its interest in the Securities with any other person;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(lj) the Subscriber (i) is able to fend for him/her/itself in the Subscription; , (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and Securities, (iii) has the ability to bear the economic risks of its prospective investment investment, and (iv) can afford the complete loss of such investment;
(mk) the Subscriber acknowledges that (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Securities for an indefinite period of time;
(l) the Subscriber has is not acquired the Shares as a result an underwriter of, and will not itself engage or dealer in, any “directed selling efforts” (as defined in Regulation S under of the 0000 Xxx) Securities, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the United States in respect distribution of the Shares which would include Securities or 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 them;
(m) offers and sales of any of the Shares; provided, however, that Securities to be issued to the Subscriber may sell or otherwise dispose will be made only in compliance with the registration provisions of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements therefrom and as otherwise provided hereinin each case only in accordance with applicable securities laws;
(n) the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising advertising, including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media media, or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(o) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;,
(ii) that any person will refund the purchase price of any of the Securities;, or
(iii) as to the future price or value of any of the Securities; or;
(ivp) the Subscriber acknowledges and agrees that any the Issuers shall not consider the Subscriber’s Subscription for acceptance unless the undersigned provides to the Issuers, along with an executed copy of this Agreement:
(i) a fully completed and executed Questionnaires in the forms attached hereto as Exhibit “A” and Exhibit “B”, and
(ii) such other supporting documentation that the Issuers or their legal counsel may request to establish the Subscriber’s qualification as a qualified investor; and
(q) by completing: (i) the Canadian Questionnaire, the Subscriber is representing and warranting that the Subscriber satisfies one of the categories of registration and prospectus exemptions provided in National Instrument 45-106 – Prospectus and Registration Exemptions (“NI 45-106”) adopted by the Canadian Securities will be listed Administrators, and posted (ii) the US Questionnaire, the Subscriber is representing and warranting that the Subscriber is an “accredited investor” as defined in Regulation D under the 1933 Act.
6.2 In this Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any the purpose of the Securities of Agreement includes any person in the Company on any stock exchange or automated dealer quotation systemUnited States.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. (a) 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is a U.S. Person;
(b) the Subscriber is resident in the jurisdiction set out under the heading “Name and Address of Subscriber” on the signature page of this Subscription Agreement;
(c) it has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporationcorporate entity, it is duly incorporated and 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 Subscriber;
(cd) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(de) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption from the registration and prospectus requirements of applicable securities legislation in all jurisdictions relevant to this Subscription, and, as a consequence, the Subscriber will not be entitled to use most of the civil remedies available under applicable securities legislation and the Subscriber will not receive information that would otherwise be required to be provided to the Subscriber pursuant to applicable securities legislationSubscriber;
(f) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Personhas received and carefully read this Subscription Agreement;
(g) the Subscriber is not a U.S. Personaware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(h) the Subscriber is resident has made an independent examination and investigation of an investment in the jurisdiction set out under Units and the heading “Name Company and Address of Subscriber” has depended on the signature page advice of this Subscription Agreementits legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber’s decision to invest in the Units and the Company;
(i) the sale Subscriber (i) has adequate net worth and means of the Shares to the Subscriber as contemplated providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this Subscription Agreement complies with or investment, and (iii) is exempt from able to bear the applicable securities legislation economic risks of an investment in the jurisdiction Units for an indefinite period of residence of the Subscribertime;
(j) the Subscriber is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for the Subscriber’s own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the SharesUnits; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(k) all information contained in the Questionnaires is complete and accurate and may be relied upon by the Company;
(l) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and the Questionnaires and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(m) the Subscriber acknowledges that is purchasing the Units for its own account for investment purposes only and not for the account of any other person and not for distribution, assignment or resale to others, and no other person has a direct or indirect beneficial interest is such Units, and the Subscriber 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 0000 Xxx) subdivided his interest in the United States in respect of the Shares which would include Units with 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 the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and federal securities laws or under an exemption from such registration requirements and as otherwise provided hereinother person;
(n) the Subscriber is not an underwriter of, or dealer in, the shares of common stock of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Units;
(o) the Subscriber is not aware of any advertisement of any of the Securities Units and is not acquiring the Shares Units as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and;
(op) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;Units,
(ii) that any person will refund the purchase price of any of the Securities;Units,
(iii) as to the future price or value of any of the Securities; Units, or
(iv) that any of the Securities Units will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Securities Units of the Company on any stock exchange or automated dealer quotation system; and
(q) the Subscriber acknowledges and agrees that the Company shall not consider the Subscriber’s Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Subscription Agreement:
(i) a fully completed and executed copy of each of the Questionnaires in the forms attached hereto as Exhibit A, and
(ii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber’s qualification as a qualified investor.
6.2 In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for the purpose of the Subscription Agreement includes any person in the United States.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Del Toro Silver Corp.)
