Common use of REPRESENTATIONS, WARRANTIES AND COVENANTS OF XXXXXXXX Clause in Contracts

REPRESENTATIONS, WARRANTIES AND COVENANTS OF XXXXXXXX. 7.1 Xxxxxxxx represents and warrants to, and covenants with, the Company that: (i) Xxxxxxxx is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in securities representing an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company, and has requested, received, reviewed and understood all information it deems relevant in making an informed decision to purchase the Shares, including, without limitation, the information contained in the Information Documents; (ii) it acknowledges that the offering of the Shares pursuant to this Agreement has not been reviewed by the Commission or any state regulatory authority; (iii) Xxxxxxxx is acquiring the Shares, for its own account for investment only and with no present intention of distributing any of such Shares (or any component thereof) or any arrangement or understanding with any other persons regarding the distribution of such Shares (or any component thereof); (iv) Xxxxxxxx will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares (or any component thereof) except in compliance with the Shares Act, rules and regulations promulgated under the Shares Act and any applicable state securities or blue sky laws; (v) Xxxxxxxx has, in connection with its decision to purchase the number of Shares set forth on the signature page hereof, not relied upon any representations or other information (whether oral or written) other than as set forth in the Information Documents and the representations and warranties of the Company contained herein; (vi) Xxxxxxxx has had an opportunity to discuss this investment with representatives of the Company and ask questions of them and such questions have been answered to the full satisfaction of Xxxxxxxx; and (vii) Xxxxxxxx is an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated under the Shares Act. 7.2 Xxxxxxxx hereby covenants with the Company not to make any sale of the Shares without satisfying the prospectus delivery requirements under the Shares Act, if any. 7.3 Xxxxxxxx further represents and warrants to, and covenants with, the Company that (i) Xxxxxxxx has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, (ii) Xxxxxxxx is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, (iii) the execution, delivery and performance of this Agreement by Xxxxxxxx and the consummation by Xxxxxxxx of the transactions contemplated by this Agreement will not violate any provision of the organizational documents of Xxxxxxxx or conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under any material agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which Xxxxxxxx is a party or, any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to Xxxxxxxx, (iv) no consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required on the part of Xxxxxxxx for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement, and (v) upon the execution and delivery of this Agreement, this Agreement shall constitute a valid and binding obligation of Xxxxxxxx enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (vi) there is not in effect any order enjoining or restraining Xxxxxxxx from entering into or engaging in any of the transactions contemplated by this Agreement. 7.4 Xxxxxxxx recognizes that an investment in the Shares is speculative and involves a high degree of risk, including a risk of total loss of Xxxxxxxx'x investment. 7.5 All of the information provided to the Company or its agents or representatives concerning Xxxxxxxx'x suitability to invest in the Company and the representations and warranties contained herein, are complete, true and correct as of the date hereof. Xxxxxxxx understands that the Company is relying on the statements contained herein to establish an exemption from registration under U.S. federal and state securities laws. 7.6 The address set forth in the signature page hereto is Xxxxxxxx'x true and correct domicile. 7.7 Xxxxxxxx understands and agrees that each certificate or other document evidencing any of the Shares shall be endorsed with the legend in substantially the form set forth below as well as any other legends required by applicable law, and Xxxxxxxx covenants that Xxxxxxxx shall not transfer the Shares represented by any such certificate without complying with the restrictions on transfer described in the legends endorsed on such certificate: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), OR REGISTERED OR QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE TRANSFERRED UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND REGISTERED OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS OR (B) EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS ARE AVAILABLE. AS A CONDITION TO PERMITTING ANY TRANSFER OF THESE SECURITIES, THE COMPANY MAY REQUIRE THAT IT BE FURNISHED WITH AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO REGISTRATION OR QUALIFICATION IS LEGALLY REQUIRED FOR SUCH TRANSFER.

REPRESENTATIONS, WARRANTIES AND COVENANTS OF XXXXXXXX. 7.1 Xxxxxxxx hereby represents and warrants to, to and covenants with, the Company that: (i) Xxxxxxxx is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in securities representing an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company, and has requested, received, reviewed and understood all information it deems relevant in making an informed decision to purchase the Shares, including, without limitation, the information contained in the Information Documents; (ii) it acknowledges that the offering of the Shares pursuant to this Agreement has not been reviewed by the Commission or any state regulatory authority; (iii) Xxxxxxxx is acquiring the Shares, for its own account for investment only and with no present intention of distributing any of such Shares (or any component thereof) or any arrangement or understanding with any other persons regarding the distribution of such Shares (or any component thereof); (iv) Xxxxxxxx will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares (or any component thereof) except in compliance with the Shares Act, rules and regulations promulgated under the Shares Act and any applicable state securities or blue sky laws; (v) Xxxxxxxx has, in connection with its decision to purchase the number of Shares set forth on the signature page hereof, not relied upon any representations or other information (whether oral or written) other than as set forth in the Information Documents and the representations and warranties of the Company contained herein; (vi) Xxxxxxxx has had an opportunity to discuss this investment with representatives of the Company and ask questions of them and such questions have been answered to the full satisfaction of Xxxxxxxx; and (vii) Xxxxxxxx is an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated under the Shares Act. 7.2 Xxxxxxxx hereby covenants with the Company not to make any sale of the Shares without satisfying the prospectus delivery requirements under the Shares Act(which representations, if any. 7.3 Xxxxxxxx further represents and warrants to, warranties and covenants with, shall survive the Company that closing) that: (ia) Xxxxxxxx it is not resident in the United States; (b) it has full right, power, authority received and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of carefully read this Agreement, ; (iic) Xxxxxxxx it is duly organized, incorporated and validly existing and in good standing subsisting under the laws of its jurisdiction of organizationincorporation and all necessary approvals by its directors, (iii) the execution, delivery shareholders and others have been obtained to authorize execution and performance of this Agreement by Xxxxxxxx on behalf of Xxxxxxxx; (d) it has the legal capacity and the consummation by Xxxxxxxx of the transactions contemplated by competence to enter into and execute this Agreement will not violate any provision of the organizational documents of Xxxxxxxx or conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under any material agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument and to which Xxxxxxxx is a party or, any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to Xxxxxxxx, take all actions required pursuant hereto; (ive) no consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required on the part of Xxxxxxxx for the execution it has duly executed and delivery of delivered this Agreement or the consummation of the transactions contemplated by this Agreement, and (v) upon the execution and delivery of this Agreement, this Agreement shall constitute constitutes a valid and binding obligation agreement of Xxxxxxxx enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity against Xxxxxxxx; (regardless of whether such enforceability is considered in a proceeding in equity or at lawf) and (vi) there is not in effect any order enjoining or restraining Xxxxxxxx from the entering into or engaging of this Agreement and the transactions contemplated hereby do not result in the violation of any of the transactions contemplated terms and provisions of any law applicable to, or, if applicable, the constating documents of, Xxxxxxxx, or of any agreement, written or oral, to which Xxxxxxxx may be a party or by which Xxxxxxxx is or may be bound; (g) Xxxxxxxx (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 Agreement.investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time, and can afford the complete loss of such investment; 7.4 (h) Xxxxxxxx recognizes is aware that an investment in the Shares Company is speculative and involves a high degree of riskcertain risks, including a risk of total the possible loss of Xxxxxxxx'x the investment., and Xxxxxxxx has carefully read and considered the matters set forth under the caption “Risk Factors” appearing in the Company’s most recent quarterly report on Form 10-QSB filed with the SEC; 7.5 All (i) it 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 and the Company; (j) it 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 longer accurate or have been breached, it shall promptly notify the Company; (k) the acknowledgements, representations and agreements contained in this Agreement are complete and accurate and may be relied upon by the Company, and Xxxxxxxx will notify the Company immediately of any material change in any such information provided occurring prior to the closing of the acquisition of the Shares; (l) it 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 in such Shares, and it has not subdivided its interest in the Shares with any other person; (m) it is not an underwriter of, or dealer in, the common shares of the Company, nor is it participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares; (n) it has made an independent examination and investigation of an investment in the Shares and the Company or and has depended on the advice of its agents or representatives concerning Xxxxxxxx'x suitability legal and financial advisors and agrees that the Company will not be responsible in anyway whatsoever for its decision to invest in the Company Shares and the representations and warranties contained herein, are complete, true and correct as Company; (o) it is not aware of the date hereof. Xxxxxxxx understands that the Company is relying on the statements contained herein to establish an exemption from registration under U.S. federal and state securities laws. 7.6 The address set forth in the signature page hereto is Xxxxxxxx'x true and correct domicile. 7.7 Xxxxxxxx understands and agrees that each certificate or other document evidencing any advertisement of any of the Shares shall be endorsed with the legend in substantially the form set forth below as well as any other legends required by applicable law, and Xxxxxxxx covenants that Xxxxxxxx shall is not transfer acquiring the Shares represented 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, (p) no person has made to Xxxxxxxx any such certificate without complying with written or oral representations: (i) that any person will resell or repurchase any of the restrictions on transfer described in Shares; (ii) that any person will refund the legends endorsed on such certificate: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), OR REGISTERED OR QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE TRANSFERRED UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND REGISTERED OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS OR (B) EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS ARE AVAILABLE. AS A CONDITION TO PERMITTING ANY TRANSFER OF THESE SECURITIES, THE COMPANY MAY REQUIRE THAT IT BE FURNISHED WITH AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO REGISTRATION OR QUALIFICATION IS LEGALLY REQUIRED FOR SUCH TRANSFER.purchase price of any of the Shares; or,

REPRESENTATIONS, WARRANTIES AND COVENANTS OF XXXXXXXX. 7.1 Xxxxxxxx represents and warrants to, and covenants agrees with, the Company that: Investor as follows: (ia) Xxxxxxxx is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in securities representing an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company, and has requested, received, reviewed and understood all information it deems relevant in making an informed decision to purchase the Shares, including, without limitation, the information contained in the Information Documents; (ii) it acknowledges that the offering of the Shares pursuant to this Agreement has not been reviewed by the Commission or any state regulatory authority; (iii) Xxxxxxxx is acquiring the Shares, for its own account for investment only and with no present intention of distributing any of such Shares (or any component thereof) or any arrangement or understanding with any other persons regarding the distribution of such Shares (or any component thereof); (iv) Xxxxxxxx will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares (or any component thereof) except in compliance with the Shares Act, rules and regulations promulgated under the Shares Act and any applicable state securities or blue sky laws; (v) Xxxxxxxx has, in connection with its decision to purchase the number of Shares set forth on the signature page hereof, not relied upon any representations or other information (whether oral or written) other than as set forth in the Information Documents and the representations and warranties of the Company contained herein; (vi) Xxxxxxxx has had an opportunity to discuss this investment with representatives of the Company and ask questions of them and such questions have been answered to the full satisfaction of Xxxxxxxx; and (vii) Xxxxxxxx is an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated under the Shares Act. 7.2 Xxxxxxxx hereby covenants with the Company not to make any sale of the Shares without satisfying the prospectus delivery requirements under the Shares Act, if any. 7.3 Xxxxxxxx further represents and warrants to, and covenants with, the Company that (i) Xxxxxxxx has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, (ii) Xxxxxxxx is corporation duly organized, validly existing and in good standing under the laws of the State of Nevada and has all requisite corporate power and authority to carry on its jurisdiction of organization, business as now conducted and as proposed to be conducted. (iiib) the execution, delivery and performance of this Agreement by Xxxxxxxx and the consummation by Xxxxxxxx of the transactions contemplated by this Agreement will not violate any provision of the organizational documents of Xxxxxxxx or conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under any material agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which Xxxxxxxx is a party or, any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to Xxxxxxxx, (iv) no consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required All corporate action on the part of Xxxxxxxx necessary for the authorization, execution and delivery of this Agreement or and the consummation performance of the transactions contemplated by this Agreementall obligations of Xxxxxxxx hereunder has been taken, and (v) upon the execution and delivery of this Agreement, this Agreement shall constitute constitutes a valid and legally binding obligation of Xxxxxxxx enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' . (c) The execution and contracting parties' rights generally delivery of this Agreement and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (vi) there is not in effect any order enjoining or restraining Xxxxxxxx from entering into or engaging in any the consummation of the transactions contemplated hereby do not and will not conflict with or result in a breach by this AgreementXxxxxxxx of any of the terms or provisions of, or constitute a default under, the Articles of Incorporation or By-Laws of Xxxxxxxx, or any indenture, mortgage, deed of trust or other material instrument to which Xxxxxxxx is a party or by which it or any of its properties or assets are bound, or any applicable decree, judgment or order of any court, federal or state regulatory body, administrative agency or other governmental body having jurisdiction over Xxxxxxxx or any of its properties or assets. 7.4 (d) Except as disclosed in Xxxxxxxx'x periodic reports filed pursuant to the requirements of the Exchange Act, there is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending against Xxxxxxxx recognizes that an investment or any of its properties which could reasonably be expected to result in any material adverse change in the Shares is speculative business, financial condition or results of operations of Xxxxxxxx, or which could reasonably be expected to materially and involves adversely affect the properties or assets of Xxxxxxxx. (e) For a high degree period of risk18 months from and after the Effective Date, Xxxxxxxx shall not issue or grant, or contract to issue or grant, to any of the Tarricones or any other officer or director of Xxxxxxxx any equity securities of Xxxxxxxx or options to purchase equity securities of Xxxxxxxx (or securities convertible, exercisable or exchangeable for equity securities of Xxxxxxxx) other than (i) securities which are compensatory in nature (i.e., securities or options which are issued or granted at fair market value to compensate individuals for the difference between contractual or other compensation, including a risk of total loss of Xxxxxxxx'x investment. 7.5 All of the information provided to the Company or its agents or representatives concerning Xxxxxxxx'x suitability to invest reasonable bonuses, which they are actually paid in the Company cash and the representations amount of any such compensation to which they are entitled but which is not otherwise paid), (ii) securities which such persons purchase from third parties in bona fide arms-length transactions, (iii) securities which such persons purchase for cash from Xxxxxxxx at fair market value, and warranties contained herein, are complete, true and correct as of (iv) securities outstanding on the date hereof. (f) The Company will reserve from its authorized but unissued shares of Common Stock a sufficient number of shares of Common Stock to permit issuance of the Conversion Shares, the Dividend Shares and the Option Shares. (g) The Company will maintain the listing of its Common Stock on the Nasdaq SmallCap Stock Market so long as it meets the criteria for inclusion thereon and will use its commercially reasonable efforts to comply in all respects with the Company's reporting, filing and other obligations under the bylaws or rules of the National Association of Securities Dealers, Inc. and such exchanges, as applicable. Xxxxxxxx understands The Company shall promptly provide to the Investor copies of any notices it receives from Nasdaq regarding the continued eligibility of the Common Stock for listing on Nasdaq. (h) On or prior to the date that the SEC declares effective a Registration Statement contemplated by Section 2 hereof, the Company is relying on shall promptly secure the statements contained herein to establish an exemption from registration under U.S. federal and state securities laws. 7.6 The address set forth in the signature page hereto is Xxxxxxxx'x true and correct domicile. 7.7 Xxxxxxxx understands and agrees that each certificate or other document evidencing any listing of the Shares Common Stock to be issued or sold in connection with such Registration Statement on any national securities exchange or automated quotation system, if any, upon which shares of Common Stock are then listed (subject to official notice of issuance) and shall be endorsed with the legend in substantially the form set forth below as well use commercially reasonable efforts to maintain, so long as any other legends required by applicable lawshares of Common Stock shall be so listed, such listings of all such shares. (i) Upon conversion of the Investor Shares in accordance with the terms of the Series B Preferred Stock, and/or exercise of any Option in accordance with the terms hereof, the Company will, and Xxxxxxxx covenants that Xxxxxxxx shall not will use its commercially reasonable efforts to cause the transfer agent to, issue one or more certificates representing shares of Common Stock in such name or names and in such denominations specified by the Shares represented by Investor in a notice of conversion or notice of exercise, as the case may be, in accordance with the terms of this Agreement and the Option. As long as any such certificate Registration Statement shall remain effective, the shares covered thereby shall be issued to any transferee of such shares from the Investor without complying with the restrictions on transfer described in the legends endorsed on such certificate: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), OR REGISTERED OR QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE TRANSFERRED UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND REGISTERED OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS OR (B) EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS ARE AVAILABLE. AS A CONDITION TO PERMITTING ANY TRANSFER OF THESE SECURITIES, THE COMPANY MAY REQUIRE THAT IT BE FURNISHED WITH AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO REGISTRATION OR QUALIFICATION IS LEGALLY REQUIRED FOR SUCH TRANSFERrestrictive legend.