Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to the Company that: (a) At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), (8) or (9) of Regulation D under the Securities Act) as indicated in the questionnaire attached as Exhibit A hereto, and (ii) acquiring the Shares only for its own account and not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). (b) The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not been, and will not be, registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effect. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. (c) The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received and carefully reviewed the following items (collectively, the “Disclosure Documents”): (i) the SEC Documents, (ii) the Transaction Agreement, a copy of which will be filed by the Company with the SEC and (iii) the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. (f) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Documents. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. (i) Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. (j) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (k) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the SEC Documents. (l) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (m) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms. (n) Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. (o) The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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. The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (p) The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares, (ii) the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary. (q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.

Appears in 5 contracts

Samples: Business Combination Agreement (HighCape Capital Acquisition Corp.), Business Combination Agreement (HighCape Capital Acquisition Corp.), Subscription Agreement (HighCape Capital Acquisition Corp.)

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to the Company that: (a) At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), (8) or (9) of Regulation D under the Securities Act) as indicated in the questionnaire attached as Exhibit A hereto, and (ii) acquiring the Shares only for its own account and not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder ~~meets~~ is intended to meet (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). (b) The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not been, and at the Closing will not be, registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effect. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. (c) The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by the Company, or any of its officers or ~~directors, expressly~~ directors (other than those representations, warranties, covenants and agreements included in this Subscription Agreement~~) or by implication~~). (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received ~~and carefully reviewed~~ the following items (collectively, the “Disclosure Documents”): (i) the SEC Documents, (ii) the Transaction Agreement, a copy of which will be filed by the Company with the SEC and (iii) the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company (other than those representations, warranties, covenants and agreements of the Company included in this Subscription Agreement) or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. (f) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered to it by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering ~~under, or in a distribution in violation of,~~ under the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Documents. The Subscriber ~~is able to fend for itself in the transactions contemplated herein and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. (i) Alone, or together with any professional advisor(s), the Subscriber has ~~adequately~~ analyzed and ~~fully~~ considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able ~~at this time and in the foreseeable future~~ to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. (j) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (k) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the SEC Documents. (l) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (m) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or ~~conflict with~~ violate (i) any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or (ii) any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, (iii) if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable, except, in the case of clauses (i) and (ii), as would not reasonably be expected to have, individually or in the aggregate, a Subscriber Material Adverse Effect. For purposes of this Subscription Agreement, a “Subscriber Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to Subscriber that would reasonably be expected to have a material adverse effect on Subscriber’s ability to consummate the transactions contemplated hereby, including the purchase of the Shares. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms~~. (n) Neither the due diligence investigation conducted~~ , except as may be limited or otherwise affected by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. (o) The Subscriber is not (i) ~~a person~~ bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or ~~entity named on~~ other laws relating to or affecting the ~~List~~ rights of ~~Specially Designated Nationals~~ creditors generally, and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) ~~a Designated National as defined in the Cuban Assets Control Regulations~~principles of equity, ~~31 C.F.R. Part 515,~~ whether considered at law or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seqequity.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (p) The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares, (ii) the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary. (q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.

Appears in 3 contracts

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to the Company that: (a) At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an ~~institutional~~ “accredited investor” (within the meaning of Rule ~~501(a)(1), (2), (3), (7), (8) or (9~~501(a) of Regulation D under the Securities Act) as indicated in the questionnaire attached as Exhibit A hereto, and (ii) acquiring the Shares only for its own account and not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. . (b) At the time the Subscriber ~~is an institutional account~~ was offered the Shares, it was, and as ~~defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale~~ of the ~~Shares hereunder meets~~ date hereof, is (i) a “qualified purchaser” (within the ~~exemptions from filing under FINRA Rule 5123(b)(1)(A~~meaning of Section 2(a)(51) of the Investment Company Act of 1940, as amended (the “Investment Company Act”)) as indicated in the questionnaire attached as Exhibit A hereto, and (ii) acquiring the ~~institutional customer exemption~~ Shares only for its own account or for the account of another qualified purchaser. A “qualified purchaser” (within the meaning of Section 2(a)(51) of the Investment Company Act), is (i) any natural person (including any person who holds a joint, community property, or other similar shared ownership interest in an issuer that is excepted under ~~FINRA Rule 2111(b~~Section 3(c)(7) of the Investment Company Act with that person’s qualified purchaser spouse) who owns not less than $5,000,000 in investments, as defined by the U.S. Securities and Exchange Commission; (ii) any company that owns not less than $5,000,000 in investments and that is owned directly or indirectly by or for 2 or more natural persons who are related as siblings or spouse (including former spouse), or direct lineal descendants by birth or adoption, spouses of such persons, the estates of such persons, or foundations, charitable organizations, or trusts established by or for the benefit of such persons; (iii) any trust that is not covered by clause (ii) and that was not formed for the specific purpose of acquiring the securities offered, as to which the trustee or other person authorized to make decisions with respect to the trust, and each settlor or other person who has contributed assets to the trust, is a person described in clause (i), (ii) or (iv); or (iv) any person acting for its own account or the accounts of other qualified purchasers, who in the aggregate owns and invests on a discretionary basis, not less than $25,000,000 in investments. (bc) The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not been, and at the Closing will not be, registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effect. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. (cd) The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by the Company, or any of its officers or ~~directors, expressly~~ directors (other than those representations, warranties, covenants and agreements included in this Subscription Agreement~~) or by implication~~). (de) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (ef) The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received ~~and carefully reviewed~~ the following items (collectively, the “Disclosure Documents”): (i) the SEC Documents, (ii) the Transaction Agreement, a copy of which will be filed by the Company with the SEC and (iii) the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company (other than those representations, warranties, covenants and agreements of the Company included in this Subscription Agreement) or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. (fg) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered to it by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering ~~under, or in a distribution in violation of,~~ under the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (gh) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (hi) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Documents. The Subscriber ~~is able to fend for itself in the transactions contemplated herein and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. (ij) Alone, or together with any professional advisor(s), the Subscriber has ~~adequately~~ analyzed and ~~fully~~ considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able ~~at this time and in the foreseeable future~~ to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. (jk) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (kl) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the SEC Documents. (lm) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (mn) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or ~~conflict with~~ violate (i) any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or (ii) any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, (iii) if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable, except, in the case of clauses (i) and (ii), as would not reasonably be expected to have, individually or in the aggregate, a Subscriber Material Adverse Effect. For purposes of this Subscription Agreement, a “Subscriber Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to Subscriber that would reasonably be expected to have a material adverse effect on Subscriber’s ability to consummate the transactions contemplated hereby, including the purchase of the Shares. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms~~. (n) Neither the due diligence investigation conducted~~ , except as may be limited or otherwise affected by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. (o) The Subscriber is not (i) ~~a person~~ bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or ~~entity named on~~ other laws relating to or affecting the ~~List~~ rights of ~~Specially Designated Nationals~~ creditors generally, and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) ~~a Designated National as defined in the Cuban Assets Control Regulations~~principles of equity, ~~31 C.F.R. Part 515,~~ whether considered at law or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seqequity.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (p) The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares, (ii) the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary. (q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.

Appears in 2 contracts

Samples: Subscription Agreement (HighCape Capital Acquisition Corp.), Business Combination Agreement (HighCape Capital Acquisition Corp.)

Subscriber Representations, Warranties and Covenants. The ~~Subscriber~~ undersigned represents and warrants to the Company that: ~~(a)~~ a. At the time the ~~Subscriber~~ undersigned was offered the Shares, it was, and as of the date hereof, the ~~Subscriber~~ undersigned is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), ) or (7~~), (8) or (9~~) ~~of Regulation D~~ under the Securities Act of 1933, as amended (the “Securities Act) ”), as indicated in the questionnaire attached as ~~Exhibit~~ Annex A hereto, and (ii) is acquiring the Shares only for his, her or its own account and (iii) not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~(b)~~ b. The ~~Subscriber~~ undersigned understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the ~~Closing~~ Closing, have not ~~been, and will not be,~~ been registered under the Securities Act. The ~~Subscriber~~ undersigned understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the ~~Subscriber~~ undersigned absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~(if any) or any book-entry shares~~ representing the Shares delivered at the ~~Closing~~ Closing, shall contain a legend ~~or restrictive notation~~ to such effect. The ~~Subscriber~~ undersigned acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber undersigned understands and agrees that the ~~Shares~~ Shares, until registered under an effective registration statement, will be subject to transfer restrictions and, as a result of these transfer restrictions, the ~~Subscriber~~ undersigned may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The ~~Subscriber~~ undersigned understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. ~~(c)~~ c. The ~~Subscriber~~ undersigned understands and agrees that the ~~Subscriber~~ undersigned is purchasing Shares directly from the Company. The ~~Subscriber~~ undersigned further acknowledges that there have been no representations, warranties, covenants and agreements made to the ~~Subscriber~~ undersigned by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. ~~(d)~~ d. The ~~Subscriber~~undersigned’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. ~~(e)~~ e. The ~~Subscriber~~ undersigned acknowledges and agrees that the ~~Subscriber~~ undersigned has received such information as the ~~Subscriber~~ undersigned deems necessary in order to make an investment decision with respect to the Shares and any Backstop Shares. Without limiting the generality of the foregoing, the ~~Subscriber~~ undersigned acknowledges that it has ~~received and carefully~~ reviewed ~~the following items (collectively, the “Disclosure Documents”):~~ (i) the ~~SEC Documents~~Company’s Registration Statement on Form S-4 filed with the SEC, and (ii) the ~~Transaction Agreement, a copy of which will be filed by the Company~~ Company’s other filings with the SEC ((i) and (~~iii~~ii) together, the ~~investor presentation by the~~ “Company ~~and the Target, a copy of which will be furnished by the Company to the SEC~~SEC Filings”). The undersigned ~~understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber~~ represents and agrees that the ~~Subscriber~~ undersigned and the ~~Subscriber~~undersigned’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the ~~Subscriber~~ undersigned and such ~~Subscriber~~undersigned’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares and any Backstop Shares. The ~~Subscriber~~ undersigned has conducted its own investigation of the ~~Company, the Target~~ Company and the Shares and the ~~Subscriber~~ Backstop Shares and the undersigned has made its own assessment and ~~has~~ have satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares and any Backstop Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The ~~Subscriber~~ undersigned further acknowledges that the information contained in the ~~Disclosure Documents is~~ Company SEC Filings subject to change, and that any changes to the information contained in the ~~Disclosure Documents~~Company SEC Filings, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the ~~Subscriber~~undersigned’s obligation to purchase the Shares hereunder, except as otherwise provided herein. ~~(f)~~ f. The ~~Subscriber~~ undersigned became aware of this Offering of the Shares solely by means of direct contact between the ~~Subscriber~~ undersigned and the ~~Company, the Placement Agent~~ Company or a representative of the ~~Company or the Placement Agent~~Company, and the Shares were offered to the ~~Subscriber~~ undersigned solely by direct contact between the ~~Subscriber~~ undersigned and the ~~Company, the Placement Agent~~ Company or a representative of the ~~Company or the Placement Agent~~Company. The ~~Subscriber~~ undersigned acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The ~~Subscriber~~ undersigned has a substantive pre-existing relationship with the Company, ~~Target~~ MTech, MJF or their respective affiliates ~~or the Placement Agent~~ for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. ~~(g)~~ g. The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber undersigned acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares and any Backstop Shares, including those set forth in the Company SEC ~~Documents~~Filings. The ~~Subscriber~~ undersigned is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares and any Backstop Shares, and the ~~Subscriber~~ undersigned has sought such accounting, legal and tax advice as the ~~Subscriber~~ undersigned has considered necessary to make an informed investment decision. ~~(i)~~ h. Alone, or together with any professional advisor(s), the ~~Subscriber~~ undersigned has adequately analyzed and fully considered the risks of an investment in the Shares and any Backstop Shares and determined that the Shares and Backstop Shares are a suitable investment for the ~~Subscriber~~ undersigned and that the ~~Subscriber~~ undersigned is able at this time and in the foreseeable future to bear the economic risk of a total loss of the ~~Subscriber~~undersigned’s investment in the Company. The ~~Subscriber~~ undersigned acknowledges specifically that a possibility of total loss exists. ~~(j)~~ i. In making its decision to purchase the Shares and any Backstop Shares, the ~~Subscriber~~ undersigned has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transactionundersigned. ~~(k)~~ j. The ~~Subscriber~~ undersigned understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the Company SEC ~~Documents~~Filings. ~~(l)~~ k. The ~~Subscriber~~ undersigned has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. ~~(m)~~ l. The execution, delivery and performance by the ~~Subscriber~~ undersigned of this Subscription Agreement are within the powers of the ~~Subscriber~~undersigned, have been duly authorized and will not constitute or result in a breach or default under or conflict with ~~any federal or state statute, rule or regulation applicable to the Subscriber,~~ any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the ~~Subscriber~~ undersigned is a party or by which the ~~Subscriber~~ undersigned is bound, and, if the ~~Subscriber~~ undersigned is not an individual, will not violate any provisions of the ~~Subscriber~~undersigned’s charter documents, ~~including~~ including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the ~~Subscriber~~ undersigned is an individual, has legal competence and capacity to execute the same or, if the ~~Subscriber~~ undersigned is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the ~~Subscriber~~undersigned, enforceable against the ~~Subscriber~~ undersigned in accordance with its terms. ~~(n)~~ m. Neither the due diligence investigation conducted by the ~~Subscriber~~ undersigned in connection with making its decision to acquire the Shares nor any representations and warranties made by the ~~Subscriber~~ undersigned herein shall modify, amend or affect the ~~Subscriber~~undersigned’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. ~~(o)~~ n. The ~~Subscriber~~ undersigned is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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~~bank (collectively, a “Prohibited Investor”). The ~~Subscriber~~ undersigned agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the ~~Subscriber~~ undersigned is permitted to do so under applicable law. If the ~~Subscriber~~ undersigned is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the ~~Subscriber~~ undersigned maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the ~~Subscriber~~ undersigned and used to purchase the Shares and any Backstop Shares were legally derived. (p) The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares, (ii) the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary. (q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.

Appears in 2 contracts

Samples: Subscription Agreement (Akerna Corp.), Subscription Agreement (MTech Acquisition Corp)

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to the Company that: (a) At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (i) is a “qualified institutional buyer” (~~as defined in~~ within the meaning of Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule ~~501(a)(1), (2), (3), (7), (8) or (9~~501(a) of Regulation D under the Securities Act) as indicated in the questionnaire attached as Exhibit A hereto, and (ii) is acquiring the Shares only for its own account and (iii) not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). (b) The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing ~~have not been, and~~ will not ~~be,~~ have been registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged (except in ordinary course prime brokerage relationships to the extent permitted by applicable law) or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effect. The Subscriber acknowledges that the Shares will not immediately be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the ~~Shares~~ Shares, until registered under an effective registration statement, will be subject to transfer restrictions under applicable securities laws and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. (c) The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. Except for the representations, warranties and agreements of the Company expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Transaction, the Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Company and Target, including all business, legal, regulatory, accounting, credit and tax matters. (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) ~~The~~ Subscriber acknowledges and agrees that ~~the~~ Subscriber has received such information as ~~the~~ Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, ~~the~~ Subscriber acknowledges that it has received and carefully reviewed the following items (collectively, the “Disclosure Documents”): (i) the ~~SEC Documents~~final prospectus of the Company, dated as of December 10, 2020 and filed with the U.S. Securities and Exchange Commission (“SEC”) (File No. 333-248753) on December 11, 2020 (the “Prospectus”), (ii) each filing made by the Company with the SEC following the filing of the Prospectus through the date of this Subscription Agreement, (iii) the Transaction Agreement, a copy of which will be filed by the Company with the SEC and (~~iii~~iv) the investor presentation by the Company and Target (the ~~Target~~“Investor Presentation”), a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in ~~item~~ items (i) and (ii) above shall not apply following the Transaction Closing. ~~The~~ Subscriber represents and agrees that ~~the~~ Subscriber and ~~the~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as ~~the~~ Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. ~~The~~ Subscriber has conducted its own investigation of the Company, ~~the~~ Target and the Shares and ~~the~~ Subscriber has made its own assessment and ~~has~~ have satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect ~~the~~ Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein, and that, in purchasing the Shares, Subscriber is not relying upon any projections contained in the Investor Presentation. (f) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the Disclosure Documents and in the SEC Reports. Subscriber is (i) an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private placement transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluation its participation in the purchase of the Shares. Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). Subscriber is a sophisticated investor, experienced in both investing in private placement transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. Subscriber has determined based on its own independent review, and has sought such professional advice as it deems appropriate, that its purchase of the Shares (i) are fully consistent with its financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to Subscriber, (iii) have been duly authorized and approved by all necessary action, (iv) do not and will not violate or constitute a default under its charter, by-laws or other constituent document or under any law, rule, regulation, agreement or other obligation by which Subscriber is bound and (v) are a fit, proper and suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Securities. Subscriber is able to bear the substantial risks associated with its purchase of the Shares, including the loss of its entire investment therein. (g) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the ~~Company, the Placement Agent~~ Company or a representative of the ~~Company or the Placement Agent~~Company, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the ~~Company, the Placement Agent~~ Company or a representative of the ~~Company or the Placement Agent~~Company. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates ~~or the Placement Agent~~ for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the ~~SEC Documents~~Disclosure Documents and the Company’s filings with the SEC. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. (i) Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. (j) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (k) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the ~~SEC~~ Disclosure Documents. (l) The ~~Subscriber~~ Subscriber, if an entity, has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (m) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state law, statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s ~~charter~~ organizational documents~~, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable~~. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms. (n) Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. (o) ~~The~~ Subscriber is not (i) a person ~~or entity~~ named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, or a person ~~or entity~~ prohibited by any OFAC sanctions program, (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~~bank or (iv) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States (collectively, a “Prohibited Investor”). ~~The~~ Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~the~~ Subscriber is permitted to do so under applicable law. If ~~the~~ Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), ~~the~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by ~~the~~ Subscriber and used to purchase the Shares were legally derived. (p) ~~The Subscriber acknowledges that (i) no disclosure or offering document~~ Neither Subscriber, nor, to the extent it has ~~been prepared by the Placement Agent in connection with the offer and sale of the Shares~~them, ~~(ii) the Placement Agent and each~~ any of its ~~members~~equity holders, managers, general or limited partners, directors, ~~officers~~affiliates or executive officers (collectively with Subscriber, ~~employees~~the “Covered Persons”), ~~representatives and controlling persons have made no independent investigation with respect~~ are subject to any of the “Bad Actor” disqualifications described in Rule 506(d) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). Subscriber has exercised reasonable care to determine whether any Covered Person is subject to a Disqualification Event. The acquisition of the Securities by Subscriber will not subject the Company ~~or the Shares or the accuracy, completeness or adequacy of~~ to any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciaryDisqualification Event. (q) Subscriber has, and on each date any portion of the aggregate Purchase Price for the Shares would be required to be funded to the Company pursuant to this Subscription Agreement will have, sufficient immediately available funds to pay the aggregate Purchase Price for the Shares. (r) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company. (s) Subscriber understands that the foregoing representations and warranties shall be deemed material to and have been relied upon by the Company.

Appears in 2 contracts

Samples: Backstop Subscription Agreement (Foxo Technologies Inc.), Backstop Subscription Agreement (Delwinds Insurance Acquisition Corp.)

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to the Company that: (a) At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an ~~institutional~~ “accredited investor” (within the meaning of Rule ~~501(a)(1), (2), (3), (7), (8) or (9~~501(a) of Regulation D under the Securities Act) as indicated in the questionnaire attached as Exhibit A hereto, and (ii) is acquiring the Shares only for its own account and (iii) not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). (b) The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not ~~been, and will not be,~~ been registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effect, as a result, the Subscriber may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. (c) The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received ~~and carefully reviewed~~ (or in the case of documents filed with the SEC, had access to) the following items (collectively, the “Disclosure Documents”): (i) the SEC Documents, including the final prospectus of the Company, dated as of May 20, 2020 and filed with the SEC on May 20, 2020 (the “Prospectus”), (ii) the Transaction Agreement, a copy of which will be filed by the Company with the SEC and (iii) the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. (f) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the ~~SEC Documents~~Disclosure Documents and in the Company’s filings with the SEC. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. (ih) Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. (ji) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (kj) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of ~~this~~ the Offering ~~of the Shares~~ or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the ~~SEC Documents~~Company’s filings with the SEC. (lk) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (ml) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms. (nm) Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. (on) The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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~~bank (collectively, a “Prohibited Investor”). The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (po) ~~The Subscriber acknowledges that (i) no~~ No disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares~~, (ii) the~~ . The Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company~~, and (iii) in~~ . In connection with the issue and purchase of the Shares, ~~the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and~~ the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary. ~~(q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.~~

Appears in 2 contracts

Samples: Business Combination Agreement (Longview Acquisition Corp.), Subscription Agreement (Longview Acquisition Corp.)

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to the Company that: ~~(a)~~ a. At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), ) or (7~~), (8) or (9~~) ~~of Regulation D~~ under the Securities ~~Act)~~ Act as indicated in the questionnaire attached as Exhibit A hereto, and (ii) is acquiring the Shares only for its own account and (iii) not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~(b)~~ b. The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not ~~been, and will not be,~~ been registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend ~~or restrictive notation~~ to such effect. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the ~~Shares~~ Shares, until registered under an effective registration statement, will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. ~~(c)~~ c. The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. ~~(d)~~ d. The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. ~~(e)~~ e. The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has ~~received and carefully~~ reviewed ~~the following items (collectively, the “Disclosure Documents”):~~ (i) the ~~SEC Documents~~Company’s Registration Statement on Form S-1 filed with the United States Securities and Exchange Commission, as amended (the “SEC”), and (ii) the ~~Transaction Agreement, a copy of which will be filed by the Company~~ Company’s other filings with the SEC ~~and~~ (iii) the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item (i) ~~above shall not apply following~~ and (ii) together, the ~~Transaction Closing~~“Company SEC Filings”). The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the ~~Company, the Target~~ Company and the Shares and the Subscriber has made its own assessment and ~~has~~ have satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the ~~Disclosure Documents~~ Company SEC Filings is subject to change, and that any changes to the information contained in the ~~Disclosure Documents~~Company SEC Filings, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. ~~(f)~~ f. The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the ~~Company, the Placement Agent~~ Company or a representative of the ~~Company or the Placement Agent~~Company, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the ~~Company, the Placement Agent~~ Company or a representative of the ~~Company or the Placement Agent~~Company. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates ~~or the Placement Agent~~ for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) g. The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the Company SEC ~~Documents~~Filings. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. ~~(i)~~ h. Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. ~~(j)~~ i. In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. ~~(k)~~ j. The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the Company SEC ~~Documents~~Filings. ~~(l)~~ k. The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. ~~(m)~~ l. The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms. ~~(n)~~ m. Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. ~~(o)~~ n. The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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~~bank (collectively, a “Prohibited Investor”). The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (p) The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares, (ii) the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary. (q) o. The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.

Appears in 2 contracts

Samples: Subscription Agreement (Tiberius Acquisition Corp), Subscription Agreement (Tiberius Acquisition Corp)

Subscriber Representations, Warranties and Covenants. The ~~Subscriber~~ undersigned represents and warrants to the Company and the Placement Agents that: ~~(a)~~ a. At the time the ~~Subscriber~~ undersigned was offered the Shares, it was, and as of the date hereof, the ~~Subscriber~~ undersigned is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), ) or (7~~), (8) or (9~~) ~~of Regulation D~~ under the Securities Act~~) as indicated~~ , in each case, satisfying the ~~questionnaire attached as Exhibit~~ requirements set forth on Schedule A hereto), and (ii) is acquiring the Shares only for his, her or its own account or for an account over which it exercises sole discretion for another qualified institutional buyer or accredited investor and (iii) not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act~~Act (and shall provide the requested information on Schedule A following the signature page hereto). The ~~Subscriber~~ undersigned is not an entity formed for the specific purpose of acquiring the Shares. ~~Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber~~ The undersigned understands and acknowledges that the purchase and sale of the Shares hereunder meets ~~(i)~~ the exemptions from filing under FINRA Rule ~~5123(b)(1)(A~~5123(b)(1)(C) ~~and~~ or (~~ii) the institutional customer exemption under FINRA Rule 2111(b~~J). ~~(b)~~ b. The ~~Subscriber~~ undersigned understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not ~~been, and will not be,~~ been registered under the Securities Act. The ~~Subscriber~~ undersigned understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the ~~Subscriber~~ undersigned absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~(if any) or any book-entry shares~~ representing the Shares delivered at the Closing shall contain a legend ~~or restrictive notation~~ to such effect. The ~~Subscriber~~ undersigned acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber undersigned understands and agrees that the ~~Shares~~ Shares, until registered under an effective registration statement, will be subject to transfer restrictions and, as a result of these transfer restrictions, the ~~Subscriber~~ undersigned may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The ~~Subscriber~~ undersigned understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. ~~(c)~~ c. The ~~Subscriber~~ undersigned understands and agrees that the ~~Subscriber~~ undersigned is purchasing Shares directly from the Company. The ~~Subscriber~~ undersigned further acknowledges that there have been no representations, warranties, covenants and agreements made to the ~~Subscriber~~ undersigned by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. ~~(d)~~ d. The ~~Subscriber~~undersigned’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. ~~(e)~~ e. The ~~Subscriber~~ undersigned acknowledges and agrees that the ~~Subscriber~~ undersigned has received such information as the ~~Subscriber~~ undersigned deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the ~~Subscriber~~ undersigned acknowledges that it has ~~received and carefully~~ reviewed ~~the following items (collectively, the “Disclosure Documents”):~~ (i) the SEC ~~Documents~~Reports, (ii) the Transaction Agreement, a copy of which will be filed by the Company with the ~~SEC~~ SEC, and (iii) the investor presentation by the Company and ~~the Target~~Indie Semiconductor, a copy of which will be furnished by the Company to the ~~SEC~~SEC ((i), (ii) and (iii) together, the “Investor Disclosure Package”). The undersigned ~~understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber~~ represents and agrees that the ~~Subscriber~~ undersigned and the ~~Subscriber~~undersigned’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the ~~Subscriber~~ undersigned and such ~~Subscriber~~undersigned’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber undersigned further acknowledges that the information contained in the Investor Disclosure ~~Documents~~ Package is preliminary and subject to change, and that any changes to the information contained in the Investor Disclosure ~~Documents~~Package, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the ~~Subscriber~~undersigned’s obligation to purchase the Shares hereunder, except as otherwise provided herein. ~~(f)~~ f. The ~~Subscriber~~ undersigned became aware of this Offering of the Shares solely by means of direct contact between the ~~Subscriber~~ undersigned and the Company, the Placement ~~Agent~~ Agents or a representative of the Company or ~~the~~ Placement ~~Agent~~Agents, and the Shares were offered to the ~~Subscriber~~ undersigned solely by direct contact between the ~~Subscriber~~ undersigned and the Company, the Placement ~~Agent~~ Agents or a representative of the Company or ~~the~~ Placement ~~Agent~~Agents. The ~~Subscriber~~ undersigned acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The ~~Subscriber~~ undersigned has a substantive pre-existing relationship with the Company, ~~Target~~ Indie Semiconductor or ~~their respective~~ its affiliates or ~~the~~ a Placement Agent for ~~this~~ the Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. ~~(g)~~ g. The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber undersigned acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the Investor Disclosure Package and in the SEC ~~Documents~~Reports. The ~~Subscriber is able to fend for itself in the transactions contemplated herein and~~ undersigned has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the ~~Subscriber~~ undersigned has sought such accounting, legal and tax advice as the ~~Subscriber~~ undersigned has considered necessary to make an informed investment decision. ~~(i)~~ h. Alone, or together with any professional advisor(s), the ~~Subscriber~~ undersigned has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the ~~Subscriber~~ undersigned and that the ~~Subscriber~~ undersigned is able at this time and in the foreseeable future to bear the economic risk of a total loss of the ~~Subscriber~~undersigned’s investment in the Company. The ~~Subscriber~~ undersigned acknowledges specifically that a possibility of total loss exists. ~~(j)~~ i. In making its decision to purchase the Shares, the ~~Subscriber~~ undersigned has relied solely upon independent investigation made by the ~~Subscriber~~ undersigned and the representations and warranties ~~of the Company~~ set forth herein. Without limiting the generality of the foregoing, the ~~Subscriber~~ undersigned has not relied on any statements or other information provided by the Placement ~~Agent~~ Agents concerning the ~~Company, Target~~ Company or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. ~~(k)~~ j. The ~~Subscriber~~ undersigned understands and agrees that no federal or state agency has passed upon or endorsed the merits of ~~this~~ the Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the Investor Disclosure Package or the SEC ~~Documents~~Reports. ~~(l)~~ k. The ~~Subscriber~~ undersigned has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. ~~(m)~~ l. The execution, delivery and performance by the ~~Subscriber~~ undersigned of this Subscription Agreement are within the powers of the ~~Subscriber~~undersigned, have been duly authorized and will not constitute or result in a breach or default under or conflict with ~~any federal or state statute, rule or regulation applicable to the Subscriber,~~ any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the ~~Subscriber~~ undersigned is a party or by which the ~~Subscriber~~ undersigned is bound, and, if the ~~Subscriber~~ undersigned is not an individual, will not violate any provisions of the ~~Subscriber~~undersigned’s charter documents, ~~including~~ including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable, which would reasonably be expected to materially affect the legal authority of the undersigned to comply in all material respects with the terms of this Subscription Agreement. The signature on this Subscription Agreement is genuine, and the signatory, if the ~~Subscriber~~ undersigned is an individual, has legal competence and capacity to execute the same or, if the ~~Subscriber~~ undersigned is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the ~~Subscriber~~undersigned, enforceable against the ~~Subscriber~~ undersigned in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~(n)~~ m. Neither the due diligence investigation conducted by the ~~Subscriber~~ undersigned in connection with making its decision to acquire the Shares nor any representations and warranties made by the ~~Subscriber~~ undersigned herein shall modify, amend or affect the ~~Subscriber~~undersigned’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. ~~(o)~~ n. The ~~Subscriber~~ undersigned is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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~~bank (collectively, a “Prohibited Investor”). The ~~Subscriber~~ undersigned agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the ~~Subscriber~~ undersigned is permitted to do so under applicable law. If the ~~Subscriber~~ undersigned is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the ~~Subscriber~~ undersigned maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the ~~Subscriber~~ undersigned and used to purchase the Shares were legally derived. ~~(p) The Subscriber acknowledges that (i) no~~ o. No disclosure or offering document has been prepared by ~~the~~ any Placement Agent in connection with the offer and sale of the Shares~~, (ii)~~ . p. None of the Placement ~~Agent and each~~ Agents nor any of ~~its~~ their respective members, directors, officers, employees, representatives and controlling persons have made no any independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the ~~Subscriber~~ undersigned by the Company~~, and (iii) in~~ . q. In connection with the issue and purchase of the Shares, ~~the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the~~ no Placement Agent has ~~not~~ acted as the ~~Subscriber~~undersigned’s financial advisor or fiduciary. ~~(q)~~ r. The ~~Subscriber acknowledges its obligations under applicable securities laws with respect to~~ undersigned will deliver on the ~~treatment~~ Closing Date a signed copy of ~~non-public information relating to~~ the ~~Company~~“investor representation letter” in substantially the form attached as Schedule A hereto.

Appears in 2 contracts

Samples: Subscription Agreement (Thunder Bridge II Surviving Pubco, Inc.), Subscription Agreement (Thunder Bridge Acquisition II, LTD)

Subscriber Representations, Warranties and Covenants. The ~~Subscriber~~ undersigned represents and warrants to the Company that: ~~(a)~~ a. At the time the ~~Subscriber~~ undersigned was offered the Shares, it was, and as of the date hereof, the ~~Subscriber~~ undersigned is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), ) or (7~~), (8) or (9~~) ~~of Regulation D~~ under the Securities Act of 1933, as amended (the “Securities Act~~) as indicated~~ ”), in each case, satisfying the ~~questionnaire attached as Exhibit~~ requirements set forth on Schedule A hereto, and (ii) is acquiring the Shares only for his, her or its own account and (iii) not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Subscriber is not an entity formed for~~ Act (and shall provide the ~~specific purpose of acquiring~~ requested information on Schedule A following the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(bsignature page hereto). ~~(b)~~ b. The ~~Subscriber~~ undersigned understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not ~~been, and will not be,~~ been registered under the Securities Act. The ~~Subscriber~~ undersigned understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the ~~Subscriber~~ undersigned absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~(if any) or any book-entry shares~~ representing the Shares delivered at the Closing shall contain a legend ~~or restrictive notation~~ to such effect. The ~~Subscriber~~ undersigned acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber undersigned understands and agrees that the ~~Shares~~ Shares, until registered under an effective registration statement, will be subject to transfer restrictions and, as a result of these transfer restrictions, the ~~Subscriber~~ undersigned may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The ~~Subscriber~~ undersigned understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. ~~(c)~~ c. The ~~Subscriber~~ undersigned understands and agrees that the ~~Subscriber~~ undersigned is purchasing Shares directly from the Company. The ~~Subscriber~~ undersigned further acknowledges that there have been no representations, warranties, covenants and agreements made to the ~~Subscriber~~ undersigned by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. ~~(d)~~ d. The ~~Subscriber~~undersigned’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. ~~(e)~~ e. The ~~Subscriber~~ undersigned acknowledges and agrees that the ~~Subscriber~~ undersigned has received such information as the ~~Subscriber~~ undersigned deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the ~~Subscriber~~ undersigned acknowledges that it has ~~received and carefully~~ reviewed ~~the following items (collectively, the “Disclosure Documents”):~~ (i) the Company’s filings (the “Company SEC ~~Documents~~Filings”) with the United States Securities and Exchange Commission, as amended (the “SEC”), (ii) the ~~Transaction Agreement~~investor presentation dated July 27, ~~a copy of which will be filed by the Company with the SEC~~ 2020 and (iii) the ~~investor presentation by~~ financial and related information for the ~~Company~~ year ended December 31, 2019 of BankMobile ((i), (ii) and (iii) together, the ~~Target, a copy of which will be furnished by the Company to the SEC~~“Investor Disclosure Package”). The undersigned ~~understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber~~ represents and agrees that the ~~Subscriber~~ undersigned and the ~~Subscriber~~undersigned’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the ~~Subscriber~~ undersigned and such ~~Subscriber~~undersigned’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber undersigned further acknowledges that the information contained in the Investor Disclosure ~~Documents~~ Package is preliminary and subject to change, and that any changes to the information contained in the Investor Disclosure ~~Documents~~Package, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the ~~Subscriber~~undersigned’s obligation to purchase the Shares hereunder, except as otherwise provided herein. ~~(f)~~ f. The ~~Subscriber~~ undersigned became aware of this ~~Offering~~ offering of the Shares solely by means of direct contact between the ~~Subscriber~~ undersigned and the ~~Company, the Placement Agent or a representative of the~~ Company ~~or the Placement Agent,~~ and the Shares were offered to the ~~Subscriber~~ undersigned solely by direct contact between the ~~Subscriber~~ undersigned and the ~~Company, the Placement Agent~~ Company or a representative of the ~~Company or the Placement Agent~~Company. The ~~Subscriber~~ undersigned acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The ~~Subscriber~~ undersigned has a substantive pre-existing relationship with the ~~Company, Target or their respective affiliates or~~ Company for the ~~Placement Agent for this Offering~~ offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. ~~(g)~~ g. The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber undersigned acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the Investor Disclosure Package and in the Company SEC ~~Documents~~Filings. The ~~Subscriber is able to fend for itself in the transactions contemplated herein and~~ undersigned has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the ~~Subscriber~~ undersigned has sought such accounting, legal and tax advice as the ~~Subscriber~~ undersigned has considered necessary to make an informed investment decision. ~~(i)~~ h. Alone, or together with any professional advisor(s), the ~~Subscriber~~ undersigned has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the ~~Subscriber~~ undersigned and that the ~~Subscriber~~ undersigned is able at this time and in the foreseeable future to bear the economic risk of a total loss of the ~~Subscriber~~undersigned’s investment in the Company. The ~~Subscriber~~ undersigned acknowledges specifically that a possibility of total loss exists. ~~(j)~~ i. In making its decision to purchase the Shares, the ~~Subscriber~~ undersigned has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transactionundersigned. ~~(k)~~ j. The ~~Subscriber~~ undersigned understands and agrees that no federal or state agency has passed upon or endorsed the merits of ~~this Offering~~ the offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the Investor Disclosure Package or the Company SEC ~~Documents~~Filings. ~~(l)~~ k. The ~~Subscriber~~ undersigned has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. ~~(m)~~ l. The execution, delivery and performance by the ~~Subscriber~~ undersigned of this Subscription Agreement are within the powers of the ~~Subscriber~~undersigned, have been duly authorized and will not constitute or result in a breach or default under or conflict with ~~any federal or state statute, rule or regulation applicable to the Subscriber,~~ any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the ~~Subscriber~~ undersigned is a party or by which the ~~Subscriber~~ undersigned is bound, and, if the ~~Subscriber~~ undersigned is not an individual, will not violate any provisions of the ~~Subscriber~~undersigned’s charter documents, ~~including~~ including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the ~~Subscriber~~ undersigned is an individual, has legal competence and capacity to execute the same or, if the ~~Subscriber~~ undersigned is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the ~~Subscriber~~undersigned, enforceable against the ~~Subscriber~~ undersigned in accordance with its terms. ~~(n)~~ m. Neither the due diligence investigation conducted by the ~~Subscriber~~ undersigned in connection with making its decision to acquire the Shares nor any representations and warranties made by the ~~Subscriber~~ undersigned herein shall modify, amend or affect the ~~Subscriber~~undersigned’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. ~~(o)~~ n. The ~~Subscriber~~ undersigned is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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~~bank (collectively, a “Prohibited Investor”). The ~~Subscriber~~ undersigned agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the ~~Subscriber~~ undersigned is permitted to do so under applicable law. If the ~~Subscriber~~ undersigned is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the ~~Subscriber~~ undersigned maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the ~~Subscriber~~ undersigned and used to purchase the Shares were legally derived. ~~(p)~~ o. The ~~Subscriber acknowledges that (i) no disclosure or offering document has been prepared by~~ undersigned will deliver on the ~~Placement Agent in connection with the offer and sale~~ Closing Date a signed copy of the ~~Shares, (ii)~~ “investor representation letter” in substantially the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely form attached as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciarySchedule A hereto. ~~(q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.~~

Appears in 1 contract

Samples: Subscription Agreement (Megalith Financial Acquisition Corp)

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to ~~the Company~~ Holdco that: ~~(a)~~ a. At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act~~) or~~ ), an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), ) or (7~~), (8) or (9~~) ~~of Regulation D~~ under the Securities Act) ~~as indicated~~ or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the ~~questionnaire attached as~~ requirements set forth on Exhibit A B hereto, ~~and~~ (ii) acquiring the Shares only for his, her or its own account or for an account over which it exercises sole discretion for another qualified institutional buyer or accredited investor, (iii) not a party to a binding written agreement to sell, exchange or otherwise dispose of the Shares and has no current plan or intention to sell, exchange or otherwise dispose of the Shares, and (iv) not acquiring the Shares for the account of others, ~~and not~~ nor on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act~~Act (and shall provide the requested information on Exhibit B following the signature page hereto). The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~(b)~~ b. The Subscriber understands that the Shares are being offered in ~~a transaction~~ an offering not involving any public offering within the meaning of the Securities Act and that neither the Shares delivered at the Closing nor the Conversion Shares will have ~~not been, and will not be,~~ been registered under the Securities Act. The Subscriber understands that neither the Shares nor the Conversion Shares may ~~not~~ be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to ~~the Company~~ Holdco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~(if any) or any book-entry shares~~ representing the Shares delivered at the Closing or certificates representing the Conversion Shares delivered upon conversion of the Shares shall contain a legend ~~or restrictive notation~~ to such effect. The Subscriber acknowledges that neither the Shares nor the Conversion Shares will ~~not~~ be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the Shares and the Conversion Shares, until registered under an effective registration statement, will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares or the Conversion Shares and may be required to bear the financial risk of an investment in the Shares and the Conversion Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to entering into this Subscription Agreement or prior to making any offer, resale, pledge or transfer of any of the Shares or the Conversion Shares. ~~(c)~~ c. The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from ~~the Company~~Holdco. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by ~~the Company~~Holdco, or any of its ~~officers~~ officers, directors or ~~directors~~representatives, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) d. The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has ~~received and carefully~~ reviewed ~~the following items (collectively, the “Disclosure Documents”):~~ (i) the SEC ~~Documents,~~ Reports and (ii) the ~~Transaction~~ Merger Agreement, a copy of which ~~will~~ has been be filed by ~~the Company~~ Xxxxxx with the SEC ~~and~~ (iii) the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item (i) ~~above shall not apply following~~ and (ii) together, the ~~Transaction Closing~~“Investor Disclosure Package”). The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company~~Xxxxxx’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the Investor Disclosure ~~Documents~~ Package is preliminary and subject to change, and that any changes to the information contained in the Investor Disclosure ~~Documents~~Package, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the ~~Transaction~~Business Combination, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. ~~(f)~~ e. The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and ~~the Company~~Longevity or Holdco, ~~the Placement Agent~~ or a representative of ~~the Company~~ Longevity or the Placement Agent, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement AgentHoldco. The Subscriber acknowledges that ~~the Company~~ Holdco represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) f. The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC ~~Documents~~Reports. The Subscriber ~~is able to fend for itself in the transactions contemplated herein and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such independent accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. ~~(i)~~ g. Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in ~~the Company~~Holdco. The Subscriber acknowledges specifically that a possibility of total loss exists. ~~(j)~~ h. In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties ~~of the Company~~ set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. ~~(k)~~ i. The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of ~~this~~ the Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the SEC ~~Documents~~Reports. ~~(l)~~ j. The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. ~~(m)~~ k. The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with ~~any federal or state statute, rule or regulation applicable to the Subscriber,~~ any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, ~~including~~ including, without limitation, its incorporation or formation ~~papers~~documents, bylaws, indenture of trust or partnership or operating agreement, as may be applicable, which would reasonably be expected to materially affect the legal authority of the Subscriber to comply in all material respects with the terms of this Subscription Agreement. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~(n)~~ l. Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of ~~the Company~~Holdco’s representations and warranties contained herein. ~~(o)~~ m. The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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~~bank (collectively, a “Prohibited Investor”). The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. ~~(p)~~ n. The Subscriber ~~acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection~~ will deliver, contemporaneously with the ~~offer and sale~~ execution of this Subscription Agreement, a signed copy of the ~~Shares, (ii)~~ “investor representation letter” in the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely form attached as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciaryExhibit B hereto. ~~(q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.~~

Appears in 1 contract

Samples: Subscription Agreement (Denali Capital Acquisition Corp.)

Subscriber Representations, Warranties and Covenants. The ~~Subscriber~~ undersigned represents and warrants to the Company that: ~~(a)~~ a. At the time the ~~Subscriber~~ undersigned was offered the Shares, it was, and as of the date hereof, the ~~Subscriber~~ undersigned is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), ) or (7~~), (8) or (9~~) ~~of Regulation D~~ under the Securities Act~~) as indicated~~ , in each case, satisfying the ~~questionnaire attached as Exhibit~~ requirements set forth on Schedule A hereto, and (ii) is acquiring the Shares only for his, her or its own account and (iii) not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act~~Act (and shall provide the requested information on Schedule A following the signature page hereto). The ~~Subscriber~~ undersigned is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~(b)~~ b. The ~~Subscriber~~ undersigned understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not ~~been, and will not be,~~ been registered under the Securities Act. The ~~Subscriber~~ undersigned understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the ~~Subscriber~~ undersigned absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~(if any) or any book-entry shares~~ representing the Shares delivered at the Closing shall contain a legend ~~or restrictive notation~~ to such effect. The ~~Subscriber~~ undersigned acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber undersigned understands and agrees that the ~~Shares~~ Shares, until registered under an effective registration statement, will be subject to transfer restrictions and, as a result of these transfer restrictions, the ~~Subscriber~~ undersigned may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The ~~Subscriber~~ undersigned understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. ~~(c)~~ c. The ~~Subscriber~~ undersigned understands and agrees that the ~~Subscriber~~ undersigned is purchasing Shares directly from the Company. The ~~Subscriber~~ undersigned further acknowledges that there have been no representations, warranties, covenants and agreements made to the ~~Subscriber~~ undersigned by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. ~~(d)~~ d. The ~~Subscriber~~undersigned’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. ~~(e)~~ e. The ~~Subscriber~~ undersigned acknowledges and agrees that the ~~Subscriber~~ undersigned has received such information as the ~~Subscriber~~ undersigned deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the ~~Subscriber~~ undersigned acknowledges that it has ~~received and carefully~~ reviewed ~~the following items (collectively, the “Disclosure Documents”):~~ (i) the ~~SEC Documents~~Company’s Registration Statement on Form S-4 filed with the United States Securities and Exchange Commission, as amended (the “SEC”), (ii) the ~~Transaction Agreement, a copy of which will be filed by the Company~~ Company’s other filings with the SEC ((i) and (ii) together, the “Company SEC Filings”) and (iii) the ~~investor presentation by~~ financial and related information for the ~~Company~~ year ended December 31, 2018 of Hawk Parent set forth in the press release included in the Company’s Form 425 filed with the SEC on March 11, 2019 ((i) and (iii) together, the ~~Target, a copy of which will be furnished by the Company to the SEC~~“Investor Disclosure Package”). The undersigned ~~understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber~~ represents and agrees that the ~~Subscriber~~ undersigned and the ~~Subscriber~~undersigned’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the ~~Subscriber~~ undersigned and such ~~Subscriber~~undersigned’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber undersigned further acknowledges that the information contained in the Investor Disclosure ~~Documents~~ Package is preliminary and subject to change, and that any changes to the information contained in the Investor Disclosure ~~Documents~~Package, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the ~~Subscriber~~undersigned’s obligation to purchase the Shares hereunder, except as otherwise provided herein. ~~(f)~~ f. The ~~Subscriber~~ undersigned became aware of this Offering of the Shares solely by means of direct contact between the ~~Subscriber~~ undersigned and the Company, the Placement ~~Agent~~ Agents or a representative of the Company or ~~the~~ Placement ~~Agent~~Agents, and the Shares were offered to the ~~Subscriber~~ undersigned solely by direct contact between the ~~Subscriber~~ undersigned and the Company, the Placement ~~Agent~~ Agents or a representative of the Company or ~~the~~ Placement ~~Agent~~Agents. The ~~Subscriber~~ undersigned acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The ~~Subscriber~~ undersigned has a substantive pre-existing relationship with the Company, ~~Target~~ Hawk Parent or ~~their respective~~ its affiliates or ~~the~~ a Placement Agent for ~~this~~ the Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. ~~(g)~~ g. The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber undersigned acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the Investor Disclosure Package and in the Company SEC ~~Documents~~Filings. The ~~Subscriber is able to fend for itself in the transactions contemplated herein and~~ undersigned has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the ~~Subscriber~~ undersigned has sought such accounting, legal and tax advice as the ~~Subscriber~~ undersigned has considered necessary to make an informed investment decision. ~~(i)~~ h. Alone, or together with any professional advisor(s), the ~~Subscriber~~ undersigned has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the ~~Subscriber~~ undersigned and that the ~~Subscriber~~ undersigned is able at this time and in the foreseeable future to bear the economic risk of a total loss of the ~~Subscriber~~undersigned’s investment in the Company. The ~~Subscriber~~ undersigned acknowledges specifically that a possibility of total loss exists. ~~(j)~~ i. In making its decision to purchase the Shares, the ~~Subscriber~~ undersigned has relied solely upon independent investigation made by the ~~Subscriber~~ undersigned and the representations and warranties ~~of the Company~~ set forth herein. Without limiting the generality of the foregoing, the ~~Subscriber~~ undersigned has not relied on any statements or other information provided by the Placement ~~Agent~~ Agents concerning the ~~Company, Target~~ Company or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. ~~(k)~~ j. The ~~Subscriber~~ undersigned understands and agrees that no federal or state agency has passed upon or endorsed the merits of ~~this~~ the Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the Investor Disclosure Package or the Company SEC ~~Documents~~Filings. ~~(l)~~ k. The ~~Subscriber~~ undersigned has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. ~~(m)~~ l. The execution, delivery and performance by the ~~Subscriber~~ undersigned of this Subscription Agreement are within the powers of the ~~Subscriber~~undersigned, have been duly authorized and will not constitute or result in a breach or default under or conflict with ~~any federal or state statute, rule or regulation applicable to the Subscriber,~~ any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the ~~Subscriber~~ undersigned is a party or by which the ~~Subscriber~~ undersigned is bound, and, if the ~~Subscriber~~ undersigned is not an individual, will not violate any provisions of the ~~Subscriber~~undersigned’s charter documents, ~~including~~ including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the ~~Subscriber~~ undersigned is an individual, has legal competence and capacity to execute the same or, if the ~~Subscriber~~ undersigned is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the ~~Subscriber~~undersigned, enforceable against the ~~Subscriber~~ undersigned in accordance with its terms. ~~(n)~~ m. Neither the due diligence investigation conducted by the ~~Subscriber~~ undersigned in connection with making its decision to acquire the Shares nor any representations and warranties made by the ~~Subscriber~~ undersigned herein shall modify, amend or affect the ~~Subscriber~~undersigned’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. ~~(o)~~ n. The ~~Subscriber~~ undersigned is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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~~bank (collectively, a “Prohibited Investor”). The ~~Subscriber~~ undersigned agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the ~~Subscriber~~ undersigned is permitted to do so under applicable law. If the ~~Subscriber~~ undersigned is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the ~~Subscriber~~ undersigned maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the ~~Subscriber~~ undersigned and used to purchase the Shares were legally derived. ~~(p) The Subscriber acknowledges that (i) no~~ o. No disclosure or offering document has been prepared by the Placement ~~Agent~~ Agents in connection with the offer and sale of the Shares~~, (ii) the~~ . p. The Placement ~~Agent~~ Agents and each of ~~its~~ their members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the ~~Subscriber~~ undersigned by the Company~~, and (iii) in~~ . q. In connection with the issue and purchase of the Shares, the Placement ~~Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has~~ Agents have not acted as the ~~Subscriber~~undersigned’s financial advisor or fiduciary. ~~(q)~~ r. The ~~Subscriber acknowledges its obligations under applicable securities laws with respect to~~ undersigned will deliver on the ~~treatment~~ Closing Date a signed copy of ~~non-public information relating to~~ the ~~Company~~“investor representation letter” in substantially the form attached as Schedule A hereto.

Appears in 1 contract

Samples: Subscription Agreement (Thunder Bridge Acquisition LTD)

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to the Company that: (a) At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), ) or (8) ~~or (9)~~ of Regulation D under the Securities Act) as indicated in the questionnaire attached as Exhibit A hereto, and (ii) acquiring the Shares only for its own account and not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. ~~The Subscriber is not an entity formed for the specific purpose of acquiring the Shares.~~ Subscriber is an institutional account or the investment adviser registered with the SEC under Section 203 of the Investment Advisers Act of 1940, as amended, that has been delegated the decision making authority over the account and with respect to this transaction as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder ~~meets~~ is intended to meet (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). (b) The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not been, and at the Closing will not be, registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effect. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be immediately eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. (c) The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by the Company, or any of its officers or ~~directors, expressly~~ directors (other than those representations, warranties, covenants and agreements included in this Subscription Agreement~~) or by implication~~). (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The Subscriber or its investment advisor, as applicable, acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the ~~Subscriber~~ Subscriber, or its investment advisor, as applicable, acknowledges that it has received ~~and carefully reviewed~~ the following items (collectively, the “Disclosure Documents”): (i) the SEC Documents, (ii) the Transaction Agreement, a copy of which will be filed by the Company with the SEC and (iii) the investor presentation by the Company and the ~~Target~~Targets, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber or its investment advisor, as applicable, represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the ~~full~~ opportunity to ask the Company’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber or its investment advisor, as applicable, has conducted its own investigation of the Company, the ~~Target~~ Targets and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber or its investment advisor, as applicable, has deemed appropriate and without reliance upon the Company (other than those representations, warranties, covenants and agreements of the Company included in this Subscription Agreement) or the Placement ~~Agent~~Agents, the Subscriber or its investment advisor, as applicable, has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. (f) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber or its investment advisor, as applicable, and the Company, the Placement ~~Agent~~ Agents or a representative of the Company or the Placement ~~Agent~~Agents, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber or its investment advisor, as applicable, and the Company, the Placement ~~Agent~~ Agents or a representative of the Company or the Placement ~~Agent~~Agents. The Subscriber or its investment advisor, as applicable, did not become aware of this offering of the Shares, nor were the Shares offered to the Subscriber, by any other means. The Subscriber or its investment advisor, as applicable, acknowledges that the Company represents and warrants that the Shares (i) were not offered to it by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber or its investment advisor, as applicable, acknowledges that it is not relying upon, and has ~~a substantive pre-existing relationship with~~ not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, the Company, ~~Target or~~ the Targets, the Placement Agents, any of their respective affiliates or ~~the Placement Agent for this Offering~~ any control persons, officers, directors, employees, partners, agents or representatives of any of the ~~Shares~~foregoing), other than the representations and warranties of Company contained elsewhere in this Subscription Agreement, in making its investment or decision to invest in the Company. Neither the ~~Subscriber~~Subscriber or its investment advisor, as applicable, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any ~~advertisement~~ advertisement, in each case, in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement ~~Agent has~~ Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or ~~character~~ character, including those related to the Company, the Targets, the Targets’ respective credit quality, the Shares or the Transaction, and ~~has~~ have not provided any advice or recommendation in connection with the Transaction, ~~and~~ (ii) the Placement ~~Agent~~ Agents may have acquired, or during the term of the Shares may acquire, non-public information with respect to the Company, which the Subscriber agrees, subject to applicable law, need not be provided to it, (iii) the Placement Agents may have existing or future business relationships with the Company and the Targets (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that they deem necessary or appropriate to protect their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares, and (iv) the Placement Agents will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any portion thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber or its investment advisor, as applicable, acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Documents. The Subscriber ~~is able to fend for itself in the transactions contemplated herein and~~ or its investment advisor, as applicable, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber or its investment advisor, as applicable, has considered necessary to make an informed investment decision. The Subscriber will not look to the Placement Agents for all or part of any such loss or losses the Subscriber may suffer and is able to sustain a complete loss on its investment in the Shares. (i) Alone, or together with any professional advisor(s), the Subscriber or its investment advisor, as applicable, has ~~adequately~~ analyzed and ~~fully~~ considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. (j) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber or its investment advisor, as applicable, and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber or its investment advisor, as applicable, has not relied on any statements or other information provided by or on behalf of the Placement ~~Agent~~ Agents or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing concerning the Company, ~~Target~~ the Targets, the Transaction, the Transaction Agreement, this Subscription Agreement or the transactions contemplated hereby or thereby, the Shares or the offer and sale of the Shares. The Placement ~~Agent~~ Agents shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (k) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the SEC Documents. (l) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (m) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or ~~conflict with~~ violate (i) any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or (ii) any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, (iii) if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable, except, in the case of clauses (i) and (ii), as would not reasonably be expected to have, individually or in the aggregate, a Subscriber Material Adverse Effect. For purposes of this Subscription Agreement, a “Subscriber Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to Subscriber that would reasonably be expected to have a material adverse effect on Subscriber’s ability to consummate the transactions contemplated hereby, including the purchase of the Shares. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms~~. (n) Neither the due diligence investigation conducted~~ , except as may be limited or otherwise affected by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. (o) The Subscriber is not (i) ~~a person~~ bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or ~~entity named on~~ other laws relating to or affecting the ~~List~~ rights of ~~Specially Designated Nationals~~ creditors generally, and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) ~~a Designated National as defined in the Cuban Assets Control Regulations~~principles of equity, ~~31 C.F.R. Part 515,~~ whether considered at law or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seqequity.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (p) The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares, (ii) the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary. (q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.

Appears in 1 contract

Samples: Subscription Agreement (HealthCor Catalio Acquisition Corp.)

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to ~~the Company~~ Holdco that: ~~(a)~~ a. At the time the Subscriber was offered the ~~Shares~~Shares and Warrants, it was, and as of the date hereof, the Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act~~) or~~ ), an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), ) or (7~~), (8) or (9~~) ~~of Regulation D~~ under the Securities Act) ~~as indicated~~ or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the ~~questionnaire attached as~~ requirements set forth on Exhibit A C hereto, ~~and~~ (ii) acquiring the Shares and Warrants only for his, her or its own account or for an account over which it exercises sole discretion for another qualified institutional buyer or accredited investor, (iii) not a party to a binding written agreement to sell, exchange or otherwise dispose of the Shares or Warrants and has no current plan or intention to sell, exchange or otherwise dispose of the Shares or Warrants, and (iv) not acquiring the Shares or Warrants for the account of others, ~~and not~~ nor on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act~~Act (and shall provide the requested information on Exhibit C following the signature page hereto). The Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the~~ Shares ~~hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b)~~or Warrants. ~~(b)~~ b. The Subscriber understands that the Shares and Warrants are being offered in ~~a transaction~~ an offering not involving any public offering within the meaning of the Securities Act and that neither the Shares and Warrants delivered at the Closing nor the Conversion Shares and Warrant Shares will have ~~not been, and will not be,~~ been registered under the Securities Act. The Subscriber understands that none of the Shares, Warrants, Conversion Shares or Warrant Shares may ~~not~~ be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to ~~the Company~~ Holdco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~(if any) or any book-entry shares~~ representing the Shares or Warrants delivered at the Closing or certificates representing the Conversion Shares or Warrant Shares delivered upon conversion of the Shares or exercise of the Warrants, as the case may be, shall contain a legend ~~or restrictive notation~~ to such effect. The Subscriber acknowledges that none of the Shares Warrants, Conversion Shares, or Warrant Shares will ~~not~~ be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the ~~Shares~~ Shares, Warrants, Conversion Shares, and Warrant Shares, until registered under an effective registration statement, will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares, Warrants, Conversion Shares, or Warrant Shares and may be required to bear the financial risk of an investment in the Shares, Warrants, Conversion Shares, and Warrant Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to entering into this Amended and Restated Subscription Agreement or prior to making any offer, resale, pledge or transfer of any of the Shares, Warrants, Conversion Shares, or Warrant Shares. ~~(c)~~ c. The Subscriber understands and agrees that the Subscriber is purchasing Shares and Warrants directly from ~~the Company~~Holdco. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by ~~the Company~~Holdco, or any of its ~~officers~~ officers, directors or ~~directors~~representatives, expressly (other than those representations, warranties, covenants and agreements included in this Amended and Restated Subscription Agreement) or by implication. (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) d. The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares~~Shares and Warrants. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has ~~received and carefully~~ reviewed ~~the following items (collectively, the “Disclosure Documents”):~~ (i) the SEC ~~Documents,~~ Reports and (ii) the ~~Transaction~~ Merger Agreement, a copy of which ~~will~~ has been be filed by ~~the Company~~ Xxxxxx with the SEC ~~and~~ (iii) the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item (i) ~~above shall not apply following~~ and (ii) together, the ~~Transaction Closing~~“Investor Disclosure Package”). The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company~~Xxxxxx’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares. The Subscriber has conducted its own investigation of the Company, the Target and the~~ Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the TransactionWarrants. The Subscriber further acknowledges that the information contained in the Investor Disclosure ~~Documents~~ Package is preliminary and subject to change, and that any changes to the information contained in the Investor Disclosure ~~Documents~~Package, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the ~~Transaction~~Business Combination, shall in no way affect the Subscriber’s obligation to purchase the Shares and Warrants hereunder, except as otherwise provided herein. ~~(f)~~ e. The Subscriber became aware of this Offering of the Shares and Warrants solely by means of direct contact between the Subscriber and ~~the Company~~Longevity or Holdco, ~~the Placement Agent~~ or a representative of ~~the Company~~ Longevity or the Placement Agent, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement AgentHoldco. The Subscriber acknowledges that ~~the Company~~ Holdco represents and warrants that neither the Shares nor Warrants (i) were ~~not~~ offered by any form of general solicitation or general advertising and (ii) are ~~not~~ being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) f. The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Shares and Warrants, including those set forth in the SEC ~~Documents~~Reports. The Subscriber ~~is able to fend for itself in the transactions contemplated herein and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Shares~~Shares and Warrants, and the Subscriber has sought such independent accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. ~~(i)~~ g. Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and Warrants and determined that the Shares and Warrants are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in ~~the Company~~Holdco. The Subscriber acknowledges specifically that a possibility of total loss exists. ~~(j)~~ h. In making its decision to purchase the ~~Shares~~Shares and Warrants, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties ~~of the Company~~ set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. ~~(k)~~ i. The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of ~~this~~ the Offering of the Shares and Warrants or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the SEC ~~Documents~~Reports. ~~(l)~~ j. The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. ~~(m)~~ k. The execution, delivery and performance by the Subscriber of this Amended and Restated Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with ~~any federal or state statute, rule or regulation applicable to the Subscriber,~~ any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, ~~including~~ including, without limitation, its incorporation or formation ~~papers~~documents, bylaws, indenture of trust or partnership or operating agreement, as may be applicable, which would reasonably be expected to materially affect the legal authority of the Subscriber to comply in all material respects with the terms of this Amended and Restated Subscription Agreement. The signature on this Amended and Restated Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Amended and Restated Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~(n)~~ l. Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares and Warrants nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of ~~the Company~~Holdco’s representations and warranties contained herein. ~~(o)~~ m. The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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~~bank (collectively, a “Prohibited Investor”). The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares and Warrants were legally derived. ~~(p)~~ n. The Subscriber ~~acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection~~ will deliver, contemporaneously with the ~~offer~~ execution of this Amended and ~~sale~~ Restated Subscription Agreement, a signed copy of the ~~Shares, (ii)~~ “investor representation letter” in the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely form attached as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciaryExhibit C hereto. ~~(q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.~~

Appears in 1 contract

Samples: Subscription Agreement (Denali SPAC Holdco, Inc.)

Subscriber Representations, Warranties and Covenants. ~~The~~ Subscriber hereby acknowledges, represents and warrants to to, and agrees with, the Company ~~that~~and any other persons acting as selling agents as follows: (a) ~~At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the~~ The Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), (8) or (9) of Regulation D under the Securities Act) as indicated in the questionnaire attached as Exhibit A hereto, and (ii) acquiring the ~~Shares only~~ Share for ~~its~~ his own ~~account~~ account, as principal, for investment and not ~~for the account of others, and not on behalf of any other account or person or~~ with a view toto resale, distribution or fractionalization in whole or in part, and has no present agreement, understanding or arrangement to subdivide, sell, assign, or ~~for offer~~ otherwise dispose of all or ~~sale in connection with,~~ any ~~distribution thereof in violation~~ part of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b).'shares; (b) The Subscriber ~~understands~~ acknowledges his understanding that the Offering and sale of the Shares ~~are being offered in a transaction not involving any public offering within~~ is intended to be exempt from registration under the ~~meaning~~ Securities Xxx 0000 (the "Securities Act") by virtue of Section 4(2) of the Securities Act Regulation D adopted thereunder, and Rule 504 in particular, that except for purchasers who are foreign residents or residents of states where this offering has been qualified for trading, the Shares ~~delivered at the Closing have not been, and will not be, registered under the Securities Act. The Subscriber understands that the Shares may~~ can not be ~~resold~~sold, ~~transferred~~pledged, ~~pledged~~ assigned or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S unless they are subsequently registered under the Securities Act or ~~(iii) pursuant to another applicable~~ an exemption from ~~the~~ such registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effectis available. The Subscriber ~~acknowledges~~ also understands that ~~the~~ sales or transfers of his a Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be ~~required to bear~~ further restricted by the ~~financial risk~~ provisions of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares.certain state securities laws; (c) The Subscriber further understands and agrees that the ~~Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been~~ Company shall be under no ~~representations, warranties, covenants and agreements made~~ obligation whatsoever to ~~the Subscriber by the Company, or~~ include any of ~~its officers~~ said Shares in any future registration statement filed under the Securities Act and that, consequently, except for foreign residents and residents of states where this offering has been qualified for trading, the sale or ~~directors, expressly (other than those representations, warranties, covenants~~ transfer thereof in the future will be subject to significant restrictions as provided under the Securities Act and ~~agreements included in this Subscription Agreement) or by implication.~~certain state securities laws; (d) The ~~Subscriber’s acquisition~~ Subscriber (i) by himself or together with his advisor(s), has such knowledge and ~~holding of the Shares will not constitute or result~~ experience in ~~a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974~~financial, ~~as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The Subscriber acknowledges~~ business and ~~agrees~~ tax matters that the Subscriber ~~has received such information as~~ is capable of evaluating the ~~Subscriber deems necessary~~ merits of the prospective investment in ~~order to make~~ the Company and making an investment decision with respect to the ~~Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received~~ Company; and ~~carefully reviewed the following items (collectively, the “Disclosure Documents”): (i) the SEC Documents,~~ (ii) Subscriber is able to bear the ~~Transaction Agreement, a copy~~ risk of ~~which will be filed by the Company with the SEC and~~ this investment; (~~iii~~e) the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber ~~represents and agrees that~~ has been given the ~~Subscriber and the Subscriber’s professional advisor(s), if any, have had the full~~ opportunity to ask ~~the Company’s management questions~~questions of, and receive ~~such~~ answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Companyfrom, the ~~Target~~ officers and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon directors of the Company or the ~~Placement Agent~~Company's representatives concerning the terms and conditions of this Offering and other matters pertaining to this investment, and has been given the ~~Subscriber has independently made its own analysis and decision~~ opportunity to ~~enter into~~ obtain any additional information which the ~~Transaction. The Subscriber further acknowledges~~ Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of the information provided; (f) Other than the information contained in the ~~Disclosure Documents is subject to change~~aforesaid Confidential Private Offering Memorandum, ~~and that any changes to the information contained in the Disclosure Documents~~or other information, ~~including any changes based on updated information or changes in terms of the Transaction~~if any, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. (f) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent, and the Shares were offered given to the Subscriber ~~solely by direct contact between the Subscriber and the Company~~as described herein, ~~the Placement Agent~~ no representations or a representative of the Company or the Placement Agent. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not warranties have been made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Documents. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. (i) Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. (j) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made undersigned by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person ~~or entity), whether~~ in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (k) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of connection with this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the SEC Documents. (l) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (m) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agencyOffering, or any ~~agreement~~ officer, employee, agent, affiliate or ~~other undertaking, to which~~ subsidiary of any of them; (g) If the Subscriber is a ~~party or by which the Subscriber is bound~~corporation, ~~and~~partnership, ~~if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of~~ trust or ~~partnership or operating agreement~~other entity, ~~as may be applicable. The signature on~~ it is authorized and qualified to purchase the securities indicated in this Subscription Agreement ~~is genuine~~and authorized to make its capital contribution to the Company and otherwise to comply with its obligations under this Subscription Agreement, and the ~~signatory, if~~ person signing this Subscription Agreement on behalf of such entity had been duly authorized by such entity to do so; (h) If the Subscriber is an individual, ~~has legal competence~~ he is over 21 years of age and ~~capacity to execute~~ is a citizen and resident of the ~~same~~ state or country indicated herein; or, if the Subscriber is ~~not an individual the signatory has been duly authorized to execute the same~~a partnership, trust or other entity, each equity owner of such entity is over 21 years of age and ~~this Subscription Agreement constitutes~~ a ~~legal, valid and binding obligation~~ citizen of the ~~Subscriber, enforceable against~~ country indicated herein; or if the Subscriber ~~in accordance with its terms. (n) Neither~~ is a corporation, it is duly organized under the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness laws of the ~~Company’s representations~~ country set forth herein and warranties contained herein. (o) The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President if of the United States then also of the state set forth herein; (i) Any information which the Subscriber has heretofore furnished to the Company in the Purchaser Questionnaire and ~~administered by OFAC~~ in this Subscription Agreement, including information with respect to his financial position, investment objectives and business experience, is correct and complete as of the date of this Subscription Agreement and if there should be any material change in such information prior to his purchase of the Shares herein, he will immediately furnish such revised or corrected information to the Company; (~~“OFAC List”)~~j) ALL SUBSCRIBERS HERETO WHO ARE NEW YORK INVESTORS ARE REQUIRED TO REPRESENT THAT THEY UNDERSTANT THAT THE OFFERING MAY BE MADE ONLY TO THOSE NON-ACCREDITED RESIDENTS OF NEW YORK WHO (i) HAVE A NET WORTH ( ALONE OR JOINTLY WITH A SPOUSE, ~~or a person or entity prohibited by any OFAC sanctions program,~~ BUT EXCLUSIVE OF HOME FURNISHINGS AND AUTOMOBILES ) OF THREE TIMES THE AMOUNT OF INVESTMENT AND AN ADJUSTED GROSS INCOME ( ALONE OR JOINTLY WITH A SPOUSE ) OF $75,000 OR (ii) ~~a Designated National as defined in the Cuban Assets Control Regulations~~A NET WORTH (ALONE OR JOINTLY WITH A SPOUSE, ~~31 C.F.R. Part 515~~BUT EXCLUSIVE OF HOME FURNISHINGS AND AUTOMOBILES) OF 5 TIMES THE AMOUNT OF THE INVESTMENT. FURTHER, or BY SIGNING BELOW ALL NON- ACCREDITED NEW YORK INVESTORS CONFIRM THAT THEY MEET THE FOREGOING CRITERIA FOR INVESTMENT: ----------------------------------- (~~iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required~~ signature by ~~applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~New York residents only), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (p) The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares, (ii) the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary. (q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.

Appears in 1 contract

Samples: Subscription Agreement (Cactus New Media I Inc)

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to the Company that: (a) At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an ~~institutional~~ “accredited investor” (within the meaning of Rule ~~501(a)(1), (2), (3), (7), (8) or (9~~501(a)(3) of Regulation D under the Securities Act) ~~as indicated in~~ (an “Accredited Investor”) and an “Institutional Account” (within the ~~questionnaire attached as Exhibit A hereto~~meaning of FINRA Rule 4512(c)) (an “Institutional Account”), and (ii) is acquiring the Shares only for its own account and (iii) not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). (b) The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not ~~been, and will not be,~~ been registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effect. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and ~~agrees that the Shares will be subject to transfer restrictions and,~~ as a result of ~~these transfer~~ such restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. (c) The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received ~~and carefully reviewed~~ (or in the case of documents filed with the SEC, had access to) the following items (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of August 26, 2020 and filed with the SEC ~~Documents~~(File No. 333-241727) on August 28, 2020 (the “CFII Prospectus”), (ii) the Form S-4 filed by XX XX with the SEC on December 23, 2020 (the “Form S-4”), (iii) each other filing made by the Company with the SEC following the filing of the CFII Prospectus through the date of this Subscription Agreement, (iv) the Transaction Agreement, a copy of which ~~will be~~ was filed by the Company with the ~~SEC~~ Form S-4, and (~~iii~~v) the investor presentation by the Company and the Target, a copy of which ~~will be~~ was furnished by the Company to the ~~SEC~~SEC on Form 8-K on November 30, 2020. The undersigned understands the significant extent to which certain of the disclosures contained in ~~item~~ items (i), (ii) and (iii) above shall not apply following the Transaction Closing. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. (f) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the Company, the Placement ~~Agent~~ Agents or a representative of the Company or the Placement ~~Agent~~Agents, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Company, the Placement ~~Agent~~ Agents or a representative of the Company or the Placement ~~Agent~~Agents. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the ~~SEC Documents~~Disclosure Documents and in the Company’s filings with the SEC. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. (ih) Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. (ji) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement ~~Agent~~ Agents concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (kj) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this ~~Offering~~ offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the ~~SEC Documents~~Company’s reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof. (lk) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of ~~its jurisdiction~~ the Republic of ~~incorporation or formation~~Singapore. (ml) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, ~~and, if the Subscriber is not an individual,~~ and will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the ~~signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the~~ signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. (nm) Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. (on) The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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. The Subscriber agrees to provide law enforcement agencies~~bank (collectively, ~~if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law~~a “Prohibited Investor”). If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (po) ~~The Subscriber acknowledges that (i) no~~ No disclosure or offering document has been prepared by the Placement ~~Agent~~ Agents in connection with the offer and sale of the Shares~~, (ii) the~~ . The Placement ~~Agent~~ Agents and each of ~~its~~ their respective members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company~~, and (iii) in~~ . In connection with the issue and purchase of the Shares, the Placement ~~Agent is acting solely as~~ Agents have not made any recommendations regarding an investment in the ~~Company’s placement agent in connection with~~ Company or the ~~Transaction and is not acting as an underwriter~~ Shares or ~~in any other capacity and the Placement Agent has not~~ acted as the Subscriber’s financial advisor or fiduciary. (qp) The Subscriber acknowledges ~~its obligations under applicable securities laws with respect~~ and is aware that Xxxxxxx Xxxxx is acting as financial advisor to the ~~treatment of non-public information relating to~~ Target in connection with the ~~Company~~Transaction.

Appears in 1 contract

Samples: Subscription Agreement (CF Finance Acquisition Corp II)

Subscriber Representations, Warranties and Covenants. ~~The~~ Subscriber hereby acknowledges, represents and warrants to to, and agrees with, the Company ~~that~~and any other persons acting as selling agents as follows: (a) The Subscriber is not a resident of the United States and if a corporation or other entity, is not organized under the laws of any jurisdiction within the United States, and if the Subscriber is an entity other than an individual, it was not formed for the purpose of investing in securities sold under Regulation S under the Act. Subscriber is not a subsidiary of a corporation organized in the United States, and is not otherwise a "U.S. Person" as that term is defined in Section 902 of Regulation S. (b) At the time that this subscription for the Shares was made, Subscriber was ~~offered the Shares, it was, and as~~ outside of the ~~date hereof,~~ United States and continued to be outside of the United States at the time this Subscription Agreement was delivered to the Company. (c) Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), (8) or (9) of Regulation D under the Securities Act) as indicated in the questionnaire attached as Exhibit A hereto, and (ii) acquiring the Shares ~~only~~ for his, her or its own ~~account and not~~ ac-count, as principal, or for the account of ~~others~~persons each of whom have entered into offshore subscription agreements or documents certifying that they are not U.S. Persons as defined under Regulation S, and ~~not on behalf of any other~~ the undersigned confirms that neither he, she, it or they are purchasing the Shares for the account or ~~person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed~~ for the ~~specific purpose~~ benefit of ~~acquiring the Shares. Subscriber is an institutional account~~ a U.S. Person, as defined in ~~FINRA Rule 4512(c).~~ Regulation S. (d) Subscriber ~~understands~~ warrants and ~~acknowledges~~ represents that he is not a resident of the United States; (e) The offer leading to the purchase and sale of evidenced hereby was made in an "offshore transaction" for the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). (b) The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not been, and will not be, registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning purposes of Regulation S under the ~~Securities Act~~ Act. An "offshore transaction" is defined under Regulation S as any offer or ~~(iii) pursuant to another applicable exemption from the registration requirements~~ sale of ~~the Securities Act, and in each of cases~~ securities if (i) ~~and (iii) in accordance with any applicable securities laws~~ the offer is made to a person outside of the ~~states~~ United States or the Company and ~~other jurisdictions~~ any person acting for the Company reasonably believes that the Subscriber is outside of the United States when the offer is made; or (ii) the transaction is executed in or through the facilities of an offshore securities market as defined by Regulation S to be the "Eurobond Market," as regulated by the Association of the International Bond Dealers, the American Stock Exchange of Hong Kong Limited, the International Stock Exchange of the United Kingdom and the Republic of Ireland, Limited, the Johannesburg Stock Exchange, the Toronto Stock Exchange, the Vancouver Stock Exchange, the Stockholm Stock Exchange, the Tokyo Stock Exchange or the Zurich Stock Exchange. In regard to this representation and warranty and understanding, it is agreed that offers and sales to persons excluded from the definition of "U.S. Person" are offshore transactions; (f) For purposes of this Agreement, a "U.S. person as defined under Regulation S is (i) any natural person resident in the United States; (ii) any partnership or corporation organized or incorporated under the laws of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effect. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. (c) The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received and carefully reviewed the following items (collectively, the “Disclosure Documents”): (i) the SEC Documents, (ii) the Transaction Agreement, a copy of which will be filed by the Company with the SEC and ; (iii) ~~the investor presentation by the Company and the Target, a copy~~ any estate of which ~~will be furnished by the Company to the SEC. The undersigned understands the significant extent to~~ an executor or administrator is a U.S. Person; (iv) any trust of which ~~certain~~ any trustee is a U.S. Person; (v) any agency or branch of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment a foreign entity located in the ~~Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company~~ United States; (vi) any non-organized, incorporated or ~~the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained~~ (if an individual) resident in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. (f) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising United States and (iivii) any partnership or corporation if (A) organized or incorporated under the laws of any foreign jurisdiction and (B) formed by a U.S. Person principally for the purpose of investing in securities not registered under the Act unless it is organized, incorporated or owned by accredited investors who are not ~~being offered in a manner involving a public offering under~~natural persons, estates or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. trusts; (g) Neither the Subscriber, nor any ~~of its directors~~affiliate, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by nor any person ~~or entity under or~~ acting on their behalf, has made any direct selling efforts in ~~connection with~~ the ~~Transaction or~~ United States, as defined in Regulation S to be any of activity undertaken for the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects purpose of, or that could reasonably be expected to have the effect of conditioning the market in the United States for any ~~other matter concerning the Company or the Transaction.~~ securities being purchased hereby; (h) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Documents. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. (i) Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. (j) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (k) The Subscriber further understands and agrees that the Company shall be under no ~~federal or state agency has passed upon or endorsed the merits~~ obligation whatsoever to include any of ~~this Offering of the Shares or made~~ said securities in any findings or determination as to the fairness of this investment or the accuracy or adequacy of the SEC Documents. (l) The Subscriber has been duly formed or incorporated and is validly existing in good standing future registration statement filed under the ~~laws of its jurisdiction of incorporation~~ Act and that, consequent-ly, the sale or formation. (m) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms. (n) Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. (o) The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined transfer thereof 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. The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution future will be subject to ~~the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.),~~ significant restrictions as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations provided in Regulation S under the ~~BSA/PATRIOT Act. To the extent required, it maintains policies~~ Act and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (p) The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares, (ii) the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary. (q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.discussed herein above;

Appears in 1 contract

Samples: Subscription Agreement (New Century Energy Corp.)

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to the Company that: (a) At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), ) or (7~~), (8) or (9~~) of Regulation D under the Securities Act) (an “Accredited Investor”) and an “Institutional Account” (within the meaning of FINRA Rule 4512(c)) (an “Institutional Account”), as indicated in the questionnaire attached as Exhibit A ~~hereto~~hereto (an “Investor Questionnaire”), and (ii) is acquiring the Shares only for its own account and (iii) not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). (b) The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not ~~been, and will not be,~~ been registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effect. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and ~~agrees that the Shares will be subject to transfer restrictions and,~~ as a result of ~~these transfer~~ such restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. (c) The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received ~~and carefully reviewed~~ (or in the case of documents filed with the SEC, had access to) the following items (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of August 26, 2020 and filed with the SEC ~~Documents~~(File No. 333-241727) on August 28, 2020 (the “CFII Prospectus”), (ii) each filing made by the Company with the SEC following the filing of the CFII Prospectus through the date of this Subscription Agreement, (iii) the Transaction Agreement, a copy of which will be filed by the Company with the SEC and (~~iii~~iv) the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in ~~item~~ items (i) and (ii) above shall not apply following the Transaction Closing. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. (f) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the Company, the Placement ~~Agent~~ Agents or a representative of the Company or the Placement ~~Agent~~Agents, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Company, the Placement ~~Agent~~ Agents or a representative of the Company or the Placement ~~Agent~~Agents. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the ~~SEC Documents~~Disclosure Documents and in the Company’s filings with the SEC. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. (ih) Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. (ji) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement ~~Agent~~ Agents concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (kj) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the ~~SEC Documents~~Company’s reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof. (lk) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (ml) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. (nm) Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. (on) The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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~~bank (collectively, a “Prohibited Investor”). The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (po) ~~The Subscriber acknowledges that (i) no~~ No disclosure or offering document has been prepared by the Placement ~~Agent~~ Agents in connection with the offer and sale of the Shares~~, (ii) the~~ . The Placement ~~Agent~~ Agents and each of ~~its~~ their respective members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company~~, and (iii) in~~ . In connection with the issue and purchase of the Shares, the Placement ~~Agent is acting solely as~~ Agents have not made any recommendations regarding an investment in the ~~Company’s placement agent in connection with~~ Company or the ~~Transaction and is not acting as an underwriter~~ Shares or ~~in any other capacity and the Placement Agent has not~~ acted as the Subscriber’s financial advisor or fiduciary. (qp) The Subscriber acknowledges ~~its obligations under applicable securities laws with respect~~ and is aware that Xxxxxxx Xxxxx is acting as financial advisor to the ~~treatment of non-public information relating to~~ Target in connection with the ~~Company~~Transaction.

Appears in 1 contract

Samples: Subscription Agreement (CF Finance Acquisition Corp II)

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to ~~the Company~~ SC Health and HoldCo that: (a) At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (i) is (A) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), ) or (8) ~~or (9) of Regulation D~~ under the Securities Act) satisfying the applicable requirements as ~~indicated~~ set forth on Schedule I, (B) an “Institutional Account” as such term is defined in ~~the questionnaire attached as Exhibit A hereto~~FINRA Rule 4512(c), ~~and~~ (iiC) acquiring the Shares only for its own account and (D) not acquiring the Shares for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or (ii) is not a “U.S. person” within the meaning of Regulation S under the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). (b) The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not ~~been, and will not be,~~ been registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to ~~the Company~~ HoldCo or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~each of cases (i) and (iii) in~~ accordance with ~~any~~ applicable securities laws of the states and other ~~jurisdictions of the United States~~jurisdictions, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effect. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the ~~Shares~~ Shares, until registered under an effective registration statement, will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. (c) The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from ~~the Company~~HoldCo. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by ~~the Company~~SC Health or HoldCo, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received and carefully reviewed the following items (collectively, the “Disclosure Documents”): (i) the ~~SEC Documents~~final prospectus of SC Health, dated as of July 11, 2019 and filed with the U.S. Securities and Exchange Commission (the “SEC”) (File No. 333-232240) on July 12, 2019 (the “Prospectus”), (ii) each filing made by SC Health with the SEC following the filing of the Prospectus through the date of this Subscription Agreement, (iii) the Transaction Agreement, a copy of which will be filed by ~~the Company~~ HoldCo and SC Health with the SEC and (~~iii~~iv) the investor presentation by ~~the Company~~ SC Health and the Target, a copy of which will be furnished by ~~the Company~~ HoldCo and SC Health to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in ~~item~~ items (i) and (ii) above shall not apply following the Transaction Closing. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask SC Health’s and the ~~Company~~Target’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of ~~the Company~~SC Health, HoldCo, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. (f) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and ~~the Company~~SC Health, HoldCo, the Placement ~~Agent~~ Agents or a representative of ~~the Company~~ SC Health, HoldCo or the Placement ~~Agent~~Agents, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and ~~the Company~~SC Health, HoldCo, the Placement ~~Agent~~ Agents or a representative of ~~the Company~~ SC Health, HoldCo or the Placement ~~Agent~~Agents. The Subscriber acknowledges that ~~the Company~~ SC Health and HoldCo each represents and warrants severally (and not jointly and severally), as to itself only, that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws~~. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares~~. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the ~~SEC Documents~~Disclosure Documents and in SC Health’s filings with the SEC. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. (ih) Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in ~~the Company~~HoldCo. The Subscriber acknowledges specifically that a possibility of total loss exists. (ji) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of ~~the Company~~ SC Health and HoldCo set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement ~~Agent~~ Agents concerning ~~the Company~~SC Health, HoldCo, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (kj) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of SC Health’s filings with the ~~SEC Documents~~SEC. (lk) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (ml) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms. (nm) Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of ~~the Company~~SC Health’s and HoldCo’s representations and warranties contained herein. (on) The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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~~bank (collectively, a “Prohibited Investor”). The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (o) As of the date hereof and at the Closing, neither the Subscriber, nor, to the extent it has them, any of its direct beneficial owners or (only so far as the Subscriber is aware) its indirect beneficial owners or its directors, affiliates or executive officers (collectively with the Subscriber, the “Covered Persons”), are subject to any of the “Bad Actor” disqualifications described in Rule 506(d) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Subscriber has exercised reasonable care to determine whether any Covered Person is subject to a Disqualification Event. The acquisition of Shares by the Subscriber will not subject SC Health or HoldCo to any Disqualification Event. (p) ~~The~~ Subscriber ~~acknowledges~~ is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision), other than with those persons or entities who may be deemed affiliates or control persons, acting for the purpose of acquiring, holding or disposing of or taking any other action relating to the equity securities of the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). (q) No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in HoldCo as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (ias defined in 31 C.F.R. Part 800.208) no over HoldCo from and after the Closing as a result of the purchase and sale of Shares hereunder. (r) No disclosure or offering document has been prepared by the Placement ~~Agent~~ Agents in connection with the offer and sale of the Shares~~, (ii) the~~ . The Placement ~~Agent~~ Agents and each of ~~its~~ their respective members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to HoldCo, SC Health, the ~~Company~~ Target, any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by ~~the Company, and (iii) in~~ SC Health and/or HoldCo. In connection with the issue and purchase of the Shares, the Placement ~~Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has~~ Agents have not acted as the Subscriber’s financial advisor or fiduciary. (qs) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to ~~the Company~~SC Health and HoldCo.

Appears in 1 contract

Samples: Subscription Agreement (SC Health Corp)

Subscriber Representations, Warranties and Covenants. The Subscriber hereby acknowledges, represents and warrants to to, and agrees with, the Company ~~that:~~ as follows: (a) ~~At the time the Subscriber was offered the Shares, it was, and as of the date hereof,~~ the Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), (8) or (9) of Regulation D under the Securities Act) as indicated in the questionnaire attached as Exhibit A hereto, and (ii) acquiring the Shares ~~only~~ for ~~its~~ his own account ~~and not~~ as principal, for ~~the account of others~~investment purposes only, and not ~~on behalf of any other account or person or~~ with a view to, or ~~for offer~~ for, resale or ~~sale in connection with,~~ distribution of all or any ~~distribution thereof in violation~~ part of the ~~Securities Act. The~~ Shares, and no other person has a direct or indirect beneficial interest in such Shares; (b) the Subscriber ~~is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and~~ acknowledges his understanding that the ~~purchase~~ offering and sale of the Shares ~~hereunder meets (i) the exemptions~~ is intended to be exempt from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). (b) The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not been, and will not be, registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration ~~statement~~ under the Securities Act ~~except~~ of 1933, as amended (the "Act"), by virtue of (i) to Section 4(2) of the ~~Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside~~ Act and/or the ~~United States within the meaning~~ provisions of Rule 506 of Regulation ~~S under the Securities Act or~~ D (~~iii~~"Regulation D") pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effect. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. (c) The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received and carefully reviewed the following items (collectively, the “Disclosure Documents”): (i) the SEC Documentsthereunder, (ii) the ~~Transaction Agreement~~provisions of Regulation S ("Regulation S") promulgated under the Act, ~~a copy of which will be filed by the Company with the SEC and~~ or (iii) Rule 504 of Regulation D; and, in furtherance thereof, the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber represents and warrants to and agrees with the Company that the ~~Subscriber and~~ Subscribed has the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. (f) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Documents. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. (i) Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future ability to bear the economic risk of ~~a total loss of the Subscriber’s~~ his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the ~~Company. The Subscriber acknowledges specifically that a possibility of total loss exists.~~ Shares; (jc) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber~~, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction.~~: (k) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the SEC Documents. (l) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (m) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms. (n) Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. (o) The Subscriber is not (i) further understands that any documents provided to the Subscriber may not include all of the financial and other information which would be disclosed in a ~~person~~ registration statement filed with the Securities and Exchange Commission (the "Commission") pursuant to Section S of the Act, (e.g., Form S-1, Form S-4 or ~~entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”~~Form SB-2) or ~~in any Executive Order issued by~~ an offering statement filed with the ~~President of the United States and administered by OFAC~~ Commission pursuant to Regulation A (~~“OFAC List”~~Form 1-A)~~, or a person or entity prohibited by any OFAC sanctions program,~~ . (ii) ~~a Designated National as defined in~~ has been given the ~~Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly~~ opportunity to a non-U.S. shell bank. The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001ask questions of, and ~~its implementing regulations (collectively,~~ receive answers from the ~~“BSA/PATRIOT Act”),~~ Company's concerning the ~~Subscriber maintains policies~~ terms and ~~procedures reasonably designed to comply with applicable obligations under~~ conditions of the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (p) The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale Offering of the Shares, ~~(ii)~~ and has been given the ~~Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect~~ opportunity to obtain such additional information necessary to satisfy himself as to the ~~Company~~ accuracy of the information contained herein or that which was otherwise provided in order for him to evaluate the merits and risks of investment in the Shares ~~or the accuracy, completeness or adequacy of any information supplied~~ to the ~~Subscriber by~~ extent that the ~~Company,~~ Company possesses such information or can acquire it without unreasonable effort or expense and ~~(iii) in connection~~ such information has not been furnished with ~~the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in~~ any other ~~capacity and the Placement Agent has not acted~~ offering literature except as ~~the Subscriber’s financial advisor or fiduciary~~mentioned herein. ~~(q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.~~

Appears in 1 contract

Samples: Subscription Agreement (Douglas Lake Minerals Inc.)

Subscriber Representations, Warranties and Covenants. The Subscriber hereby acknowledges, represents and warrants to to, and agrees with, the Company ~~that~~as follows: (a) ~~At the time the Subscriber was offered the Shares, it was, and as of the date hereof,~~ the Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), (8) or (9) of Regulation D under the Securities Act) as indicated in the questionnaire attached as Exhibit A hereto, and (ii) acquiring the Shares ~~only~~ for ~~its~~ his own account ~~and not~~ as principal, for ~~the account of others~~investment purposes only, and not ~~on behalf of any other account or person or~~ with a view to, or ~~for offer~~ for, resale or ~~sale in connection with,~~ distribution of all or any ~~distribution thereof in violation~~ part of the ~~Securities Act. The~~ Shares, and no other person has a direct or indirect beneficial interest in such Shares; (b) the Subscriber ~~is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and~~ acknowledges his understanding that the ~~purchase~~ offering and sale of the Shares ~~hereunder meets~~ is intended to be exempt from registration under the Securities Act of 1933, as amended (the "Act"), by virtue of (i) Section 4(2) of the ~~exemptions from filing under FINRA~~ Act and/or the provisions of Rule ~~5123(b)(1)(A~~506 of Regulation D ("Regulation D") ~~and~~ promulgated thereunder, (ii) the ~~institutional customer exemption~~ provisions of Regulation S ("Regulation S") promulgated under ~~FINRA~~ the Act, or (iii) Rule ~~2111(b~~504 of Regulation D; and, in furtherance thereof, the Subscriber represents and warrants to and agrees with the Company that the Subscribed has the financial ability to bear the economic risk of his investment, has adequate means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Shares; (c) the Subscriber: (i) further understands that any documents provided to the Subscriber may not include all of the financial and other information which would be disclosed in a registration statement filed with the Securities and Exchange Commission (the "Commission") pursuant to Section 5 of the Act, (e.g., Form S-1, Form S-4 or Form SB-2) or an offering statement filed with the Commission pursuant to Regulation A (Form 1-A). (bii) ~~The Subscriber understands that~~ has been given the ~~Shares are being offered in a transaction not involving any public offering within~~ opportunity to ask questions of, and receive answers from the ~~meaning~~ Company's concerning the terms and conditions of the ~~Securities Act and that~~ Offering of the ~~Shares delivered at the Closing have not been~~Shares, and ~~will not be, registered under~~ has been given the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) opportunity to obtain such additional information necessary to satisfy himself as to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements accuracy of the ~~Securities Act,~~ information contained herein or that which was otherwise provided in order for him to evaluate the merits and ~~in each~~ risks of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effect. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares ~~for an indefinite period of time. The Subscriber understands~~ to the extent that the Company possesses such information or can acquire it without unreasonable effort or expense and such information has not been ~~advised to consult legal counsel prior to making~~ furnished with any ~~offer, resale, pledge or transfer of any of the Shares~~other offering literature except as mentioned herein. (ciii) ~~The Subscriber understands and agrees that~~ has not relied on any oral representation, warranty or information in connection with the ~~Subscriber is purchasing~~ offering of the Shares ~~directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber~~ by the Company, or any officer, employee, agent, affiliate or subsidiary of ~~its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication~~the Company. (div) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received and carefully reviewed the following items (collectively, the “Disclosure Documents”): (i) the SEC Documents, (ii) the Transaction Agreement, a copy of which will be filed by the Company with the SEC and (iii) the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. (f) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent. The Subscriber acknowledges that the Company represents and warrants determined that the Shares ~~(i) were not offered by any form~~ are a suitable investment for him and that he/she can bear a complete loss of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering.his/her investment therein; and (gv) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Documents. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters ~~as to be~~ that he/she is capable of evaluating the merits and risks of an his investment in the Shares~~, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision.~~; (id) Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. (j) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (k) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the SEC Documents. (l) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (m) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which if the Subscriber is a ~~party~~ partnership, corporation, trust, qualified plan or ~~by which~~ other entity, it is authorized and qualified to become a holder of Shares, and the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on person signing this Subscription Agreement ~~is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory~~ on behalf of such entity has been duly authorized to ~~execute~~ do so; (e) any information which the ~~same~~Subscriber has heretofore furnished and herewith furnishes to the Company with respect to his financial position and business experience, is correct and complete as of the date of this Subscription Agreement ~~constitutes a legal~~and if there should be any material change in such information prior to issuance to him of Shares, ~~valid and binding obligation of~~ he will immediately furnish such revised or corrected information to the ~~Subscriber, enforceable against the Subscriber in accordance with its terms.~~Company; (nf) ~~Neither~~ the ~~due diligence investigation conducted by~~ foregoing acknowledgements, representations, warranties and agreements shall survive the ~~Subscriber in connection with making its decision to acquire~~ closing at which the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein.are issued; (og) ~~The Subscriber is not (i) a person or entity named on~~ the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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. The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (p) The Subscriber acknowledges that he has not purchased the Shares as a result of any general solicitation or general advertising; and (~~i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares, (ii~~h) the ~~Placement Agent~~ Subscriber's overall commitment to investments which are not readily marketable is not disproportionate to his net worth, and ~~each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to~~ his prospective investment in the Company ~~or the Shares or the accuracy, completeness or adequacy of any information supplied~~ will not cause such overall commitment to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciarybecome excessive. ~~(q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.~~

Appears in 1 contract

Samples: General Subscription Agreement (Chilco River Holdings Inc)

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to ~~the Company~~ Parent and Target that: (a) The Subscriber is either a U.S. investor or non-U.S. investor as set forth under its name on the signature page hereto, and accordingly represents the applicable additional matters under clause (i) or (ii) below: (i) Applicable to U.S. investors: At the time the Subscriber was offered the ~~Shares~~Purchased Securities, it was, and as of the date hereof, the Subscriber is (iA) is a “qualified institutional buyer” (~~as defined in~~ within the meaning of Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule ~~501(a)(1), (2), (3), (7), (8) or (9~~501(a) of Regulation D under the Securities Act) as indicated in the questionnaire attached as Exhibit A B hereto, and (iiB) is acquiring the ~~Shares~~ Purchased Securities only for its own account and (C) not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Purchased Securities. (ii) Applicable to non-U.S. investors: The Subscriber understands that the sale of the Purchased Securities is made pursuant to and in reliance upon Regulation S promulgated under the Securities Act (“Regulation S”). The Subscriber is ~~an institutional account~~ not a U.S. Person (as defined in ~~FINRA Rule 4512(c~~Regulation S), it is acquiring the Purchased Securities in an offshore transaction in reliance on Regulation S, and it has received all the information that it considers necessary and appropriate to decide whether to acquire the Purchased Securities hereunder. The Subscriber is not relying on any statements or representations made in connection with the transactions contemplated hereby other than representations contained in this Subscription Agreement. The Subscriber understands and ~~acknowledges~~ agrees that Securities sold pursuant to Regulation S may be subject to restrictions thereunder, including compliance with the ~~purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b)~~distribution compliance period provisions therein. (b) The Subscriber understands that the ~~Shares~~ Purchased Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares delivered~~ Purchased Securities issued at the Closing have not ~~been, and will not be,~~ been registered under the Securities Act. The Subscriber understands that the ~~Shares~~ Purchased Securities may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to Parent (or, after the ~~Company~~ Transaction Closing, Target) or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the ~~Shares delivered~~ Purchased Securities issued at the Closing shall contain a legend or restrictive notation to such effect. The Subscriber acknowledges that the ~~Shares~~ Purchased Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the ~~Shares~~ Purchased Securities, until registered under an effective registration statement, will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the ~~Shares~~ Purchased Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Purchased Securities for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the ~~Shares~~Purchased Securities. (c) The Subscriber understands and agrees that the Subscriber is purchasing ~~Shares~~ Purchased Securities directly from ~~the Company~~Parent. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by ~~the Company~~Parent, Target, or any of ~~its~~ their respective officers or directors, or any other person, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares~~Purchased Securities. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received and carefully reviewed the following items (collectively, the “Disclosure Documents”): (i) the final prospectus of Parent, dated as of December 6, 2021 and filed with the SEC ~~Documents~~(File No. 333-261222) on December 8, 2021 (the “Prospectus”), (ii) each filing made by Parent with the SEC following the filing of the Prospectus through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by ~~the Company~~ Parent with ~~the SEC and (iii) the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to~~ the SEC. The ~~undersigned~~ Subscriber understands the significant extent to which certain of the disclosures contained in ~~item~~ items (i) and (ii) above shall not apply following the Transaction Closing. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company~~Parent’s and Target’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Purchased Securities. The Subscriber has conducted its own investigation of ~~the Company~~Parent, ~~the~~ Target and the ~~Shares~~ Purchased Securities and the Subscriber has made its own assessment and ~~has~~ have satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the TransactionPurchased Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the ~~Shares~~ Purchased Securities hereunder, except as otherwise provided herein. (fe) The Subscriber became aware of this Offering of the ~~Shares~~ Purchased Securities solely by means of direct contact between the Subscriber and ~~the Company~~Parent, ~~the Placement Agent~~ Target, or a representative of ~~the Company~~ Parent or ~~the Placement Agent~~Target, and the ~~Shares~~ Purchased Securities were offered to the Subscriber solely by direct contact between the Subscriber and ~~the Company~~Parent, ~~the Placement Agent~~ Target, or a representative of ~~the Company~~ Parent or ~~the Placement Agent~~Target. The Subscriber acknowledges that ~~the Company~~ Parent represents and warrants that the ~~Shares~~ Purchased Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with ~~the Company~~Parent, Target or their respective affiliates ~~or the Placement Agent~~ for this Offering of the ~~Shares~~Purchased Securities. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (hf) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Purchased Securities, including those set forth in the ~~SEC Documents~~Disclosure Documents and in Parent’s filings with the SEC. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Shares~~Purchased Securities, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. (ig) Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the ~~Shares~~ Purchased Securities and determined that the ~~Shares~~ Purchased Securities are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in Parent (and after the ~~Company~~Transaction Closing, Target). The Subscriber acknowledges specifically that a possibility of total loss exists. (jh) In making its decision to purchase the ~~Shares~~Purchased Securities, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of ~~the Company~~ Parent and Target set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (ki) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the ~~Shares~~ Purchased Securities or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the ~~SEC~~ Disclosure Documents. (lj) ~~The~~ If an entity, the Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation~~. (m)~~ . The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any ~~federal or state~~ law, statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s ~~charter~~ organizational documents~~, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable~~. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms. (nk) Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the ~~Shares~~ Purchased Securities nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of ~~the Company~~Parent’s or Target’s representations and warranties contained herein. (ol) The Subscriber is not (i) a person ~~or entity~~ named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person ~~or entity~~ prohibited by any OFAC sanctions program, (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~~bank (collectively, a “Prohibited Investor”). The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the ~~Shares~~ Purchased Securities were legally derived. (pm) ~~The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale~~ As of the ~~Shares~~date hereof and as of the Closing Date, ~~(ii)~~ neither the ~~Placement Agent and each~~ Subscriber, nor, to the extent it has them, any of its ~~members~~equity holders, managers, general or limited partners, directors, ~~officers~~affiliates or executive officers (collectively with the Subscriber, ~~employees~~the “Covered Persons”), ~~representatives and controlling persons have made no independent investigation with respect~~ are subject to any of the ~~Company~~ “Bad Actor” disqualifications described in Rule 506(d) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or ~~the Shares or the accuracy, completeness or adequacy~~ (d)(3). The Subscriber has exercised reasonable care to determine whether any Covered Person is subject to a Disqualification Event. The acquisition of ~~any information supplied to~~ Purchased Securities by the Subscriber ~~by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is~~ will not ~~acting as an underwriter~~ subject Parent or in Target to any ~~other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary~~Disqualification Event. (qn) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to ~~the Company~~Parent.

Appears in 1 contract

Samples: Subscription Agreement (Globalink Investment Inc.)

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to the Company that: ~~(a)~~ a. At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), ) or (7~~), (8) or (9~~) ~~of Regulation D~~ under the Securities ~~Act)~~ Act as indicated in the questionnaire attached as Exhibit A hereto, and (ii) is acquiring the Shares only for its own account and (iii) not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares or Backstop Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~(b)~~ b. The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not ~~been, and will not be,~~ been registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend ~~or restrictive notation~~ to such effect. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the ~~Shares~~ Shares, until registered under an effective registration statement, will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. ~~(c)~~ c. The Subscriber understands and agrees that the Subscriber is purchasing the Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar lawd. [Intentionally omitted]. ~~(e)~~ e. The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares and the Backstop Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has ~~received and carefully~~ reviewed ~~the following items (collectively, the “Disclosure Documents”):~~ (i) the ~~SEC Documents~~Company’s Registration Statement on Form S-1 filed with the SEC, (ii) the ~~Transaction Agreement, a copy of which will be~~ Company’s proxy statement filed ~~by the Company~~ with the ~~SEC~~ SEC, as amended, and (iii) the ~~investor presentation by~~ Company’s other filings with the ~~Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item~~ SEC ((i), (ii) ~~above shall not apply following~~ and (iii) together, the ~~Transaction Closing~~“Company SEC Filings”). The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had ~~the full~~ an opportunity to ask the Company’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares and the Backstop Shares. The Subscriber has conducted its own investigation of the ~~Company, the Target~~ Company and the Shares and the Subscriber has made its own assessment and ~~has~~ have satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the ~~Disclosure Documents~~ Company SEC Filings is subject to change, and that any changes to the information contained in the ~~Disclosure Documents~~Company SEC Filings, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. ~~(f)~~ f. The Subscriber became aware of this Offering ~~of the Shares~~ solely by means of direct contact between the Subscriber and the ~~Company, the Placement Agent~~ Company or a representative of the Company or the ~~Placement Agent~~Target, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the ~~Company,~~ Company or the ~~Placement Agent~~ Target or a representative of the Company or the ~~Placement Agent~~Target. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates ~~or the Placement Agent~~ for this ~~Offering of the Shares~~Offering. Neither the Subscriber, nor any of its directors, officers, employees, agents, ~~stockholders~~ shareholders or partners has either directly or indirectly, including through a broker or ~~finder,~~ finder (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) g. The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares and the Backstop Shares, including those set forth in the Company SEC ~~Documents~~Filings. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares and the Backstop Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. ~~(i)~~ h. Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. ~~(j)~~ i. In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. ~~(k)~~ j. The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering ~~of the Shares~~ or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the Company SEC ~~Documents~~Filings. ~~(l)~~ k. The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. ~~(m)~~ l. The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms. ~~(n)~~ m. Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares or the Backstop Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. ~~(o)~~ n. The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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~~bank (collectively, a “Prohibited Investor”). The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares and the Backstop Shares were legally derived. (p) The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares, (ii) the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary. (q) o. The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.

Appears in 1 contract

Samples: Subscription Agreement (Greenland Acquisition Corp.)

Subscriber Representations, Warranties and Covenants. The ~~Subscriber~~ undersigned represents and warrants to the Company that: (a) At the time the ~~Subscriber~~ undersigned was offered the Acquired Shares, it was, and as of the date hereof, the ~~Subscriber~~ undersigned is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an ~~institutional~~ “accredited investor” (within the meaning of Rule ~~501(a)(1), (2), (3), (7), (8)~~ 501(a)(5) or (96) ~~of Regulation D~~ under the Securities Act) ), as indicated in the questionnaire attached as ~~Exhibit~~ Annex A hereto, and (ii) is acquiring the Acquired Shares only for his, her or its own account and (iii) not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). (b) The ~~Subscriber~~ undersigned understands that the Acquired Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Acquired Shares delivered at the ~~Closing~~ Closing, have not ~~been, and will not be,~~ been registered under the Securities Act, except as otherwise required by this Subscription Agreement. The ~~Subscriber~~ undersigned understands that the Acquired Shares may not be resold, transferred, pledged or otherwise disposed of by the ~~Subscriber~~ undersigned absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~(if any) or any book-entry shares~~ representing the Acquired Shares delivered at the ~~Closing~~ Closing, shall contain a legend ~~or restrictive notation~~ to such effect. The ~~Subscriber~~ undersigned acknowledges that the Acquired Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber undersigned understands and agrees that the ~~Shares~~ Acquired Shares, until registered under an effective registration statement, will be subject to transfer restrictions and, as a result of these transfer restrictions, the ~~Subscriber~~ undersigned may not be able to readily resell the Acquired Shares and may be required to bear the financial risk of an investment in the Acquired Shares for an indefinite period of time. The ~~Subscriber~~ undersigned understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Acquired Shares. (c) The ~~Subscriber~~ undersigned understands and agrees that the ~~Subscriber~~ undersigned is purchasing Acquired Shares directly from the Company. The ~~Subscriber~~ undersigned further acknowledges that there have been no representations, warranties, covenants and agreements made to the ~~Subscriber~~ undersigned by the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication. (d) The ~~Subscriber~~undersigned’s acquisition and holding of the Acquired Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The ~~Subscriber~~ undersigned acknowledges and agrees that the ~~Subscriber~~ undersigned has received such information as the ~~Subscriber~~ undersigned deems necessary in order to make an investment decision with respect to the Acquired Shares. Without limiting the generality of the foregoing, the ~~Subscriber~~ undersigned acknowledges that it has ~~received and carefully~~ reviewed ~~the following items (collectively, the “Disclosure Documents”):~~ (i) the Company’s Prospectus filed with the SEC ~~Documents~~on October 16, 2020, and (ii) the ~~Transaction Agreement, a copy of which will be filed by the Company with the SEC and (iii) the investor presentation by the~~ Company and ~~the Target, a copy of which will be furnished by the Company to the SEC~~Monocle’s other SEC Filings. The undersigned ~~understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber~~ represents and agrees that the ~~Subscriber~~ undersigned and the ~~Subscriber~~undersigned’s professional advisor(s), if any, have had the full opportunity to ask the ~~Company~~Company and Monocle’s management questions, receive such answers and obtain such information as the ~~Subscriber~~ undersigned and such ~~Subscriber~~undersigned’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Acquired Shares. The ~~Subscriber~~ undersigned has conducted its own investigation of the Company, ~~the Target~~ Monocle and the Acquired Shares and the ~~Subscriber~~ undersigned has made its own assessment and ~~has~~ have satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Acquired Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The ~~Subscriber~~ undersigned further acknowledges that the information contained in the ~~Disclosure Documents~~ SEC Filings is subject to change, and that any changes to the information contained in the ~~Disclosure Documents~~SEC Filings, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the ~~Subscriber~~undersigned’s obligation to purchase the Acquired Shares hereunder, except as otherwise provided herein. (f) The ~~Subscriber~~ undersigned became aware of this ~~Offering~~ offering of the Acquired Shares solely by means of direct contact between the ~~Subscriber~~ undersigned, Monocle and the ~~Company, the Placement Agent~~ Company or a representative of ~~the Company~~ Monocle or the ~~Placement Agent~~Company, and the Acquired Shares were offered to the ~~Subscriber~~ undersigned solely by direct contact between the ~~Subscriber~~ undersigned, Monocle and the ~~Company, the Placement Agent~~ Company or a representative of ~~the Company~~ Monocle or the ~~Placement Agent~~Company. The ~~Subscriber~~ undersigned acknowledges that the Company represents and warrants that the Acquired Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The ~~Subscriber~~ undersigned has a substantive pre-existing relationship with the Company, ~~Target~~ Monocle, their placement agents, or their respective affiliates ~~or the Placement Agent~~ for this ~~Offering~~ offering of the Acquired Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber undersigned acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Acquired Shares, including those set forth in the SEC ~~Documents~~Filings. The ~~Subscriber~~ undersigned is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Acquired Shares, and the ~~Subscriber~~ undersigned has sought such accounting, legal and tax advice as the ~~Subscriber~~ undersigned has considered necessary to make an informed investment decision. (ih) Alone, or together with any professional advisor(s), the ~~Subscriber~~ undersigned has adequately analyzed and fully considered the risks of an investment in the Acquired Shares and determined that the Acquired Shares are a suitable investment for the ~~Subscriber~~ undersigned and that the ~~Subscriber~~ undersigned is able at this time and in the foreseeable future to bear the economic risk of a total loss of the ~~Subscriber~~undersigned’s investment in the Company. The ~~Subscriber~~ undersigned acknowledges specifically that a possibility of total loss exists. (ji) In making its decision to purchase the Acquired Shares, the ~~Subscriber~~ undersigned has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transactionundersigned. (kj) The ~~Subscriber~~ undersigned understands and agrees that no federal or state agency has passed upon or endorsed the merits of this ~~Offering~~ offering of the Acquired Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the SEC ~~Documents~~Filings. (lk) The ~~Subscriber~~ undersigned has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (ml) The execution, delivery and performance by the ~~Subscriber~~ undersigned of this Subscription Agreement are within the powers of the ~~Subscriber~~undersigned, have been duly authorized and will not constitute or result in a breach or default under or conflict with ~~any federal or state statute, rule or regulation applicable to the Subscriber,~~ any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the ~~Subscriber~~ undersigned is a party or by which the ~~Subscriber~~ undersigned is bound, and, if the ~~Subscriber~~ undersigned is not an individual, will not violate any provisions of the ~~Subscriber~~undersigned’s charter documents, ~~including~~ including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the ~~Subscriber~~ undersigned is an individual, has legal competence and capacity to execute the same or, if the ~~Subscriber~~ undersigned is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the ~~Subscriber~~undersigned, enforceable against the ~~Subscriber~~ undersigned in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. (nm) Neither the due diligence investigation conducted by the ~~Subscriber~~ undersigned in connection with making its decision to acquire the Acquired Shares nor any representations and warranties made by the ~~Subscriber~~ undersigned herein shall modify, amend or affect the ~~Subscriber~~undersigned’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein. (on) The ~~Subscriber~~ undersigned is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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. The ~~Subscriber~~ undersigned agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the ~~Subscriber~~ undersigned is permitted to do so under applicable law. If the ~~Subscriber~~ undersigned is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the ~~Subscriber~~ undersigned maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the ~~Subscriber~~ undersigned and used to purchase the Acquired Shares were legally derived. (p) The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares, (ii) the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary. (q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.

Appears in 1 contract

Samples: Subscription Agreement (Monocle Acquisition Corp)

Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to ~~the Company~~ Seller that: ~~(a)~~ a. At the time the Subscriber was offered the Preferred Shares, it was, and as of the date hereof, the Subscriber is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), ) or (7~~), (8) or (9~~) ~~of Regulation D~~ under the Securities Act) ~~as indicated in~~ or an “accredited investor” (within the ~~questionnaire attached as Exhibit A hereto~~meaning of Rule 501(a) under the Securities Act), ~~and~~ (ii) acquiring the Preferred Shares only for his, her or its own account or for an account over which it exercises sole discretion for another qualified institutional buyer or accredited investor, (iii) other than this Agreement, not a party to a binding written agreement to sell, exchange or otherwise dispose of the Preferred Shares and has no current plan or intention to sell, exchange or otherwise dispose of the Preferred Shares, and (iv) not acquiring the Preferred Shares for the account of others, ~~and not~~ nor on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Preferred Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~(b)~~ b. The Subscriber understands that the Preferred Shares are being offered in ~~a transaction~~ an offering not involving any public offering within the meaning of the Securities Act and that neither the Preferred Shares delivered at the Closing nor the Conversion Shares will have ~~not been, and will not be,~~ been registered under the Securities Act. The Subscriber understands that neither the Preferred Shares nor the Conversion Shares may ~~not~~ be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to ~~the Company~~ Seller or a subsidiary thereof, (ii) ~~to non-U.S. persons~~ pursuant to ~~offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another~~ an applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (~~iii~~ii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~(if any) or any book-entry shares~~ representing the Preferred Shares delivered at the Closing or certificates representing the Conversion Shares delivered upon conversion of the Preferred Shares shall contain a legend ~~or restrictive notation~~ to such effect. The Subscriber acknowledges that neither the Preferred Shares nor the Conversion Shares will ~~not~~ be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the Preferred Shares and the Conversion Shares, until registered under an effective registration statement, will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Preferred Shares or the Conversion Shares and may be required to bear the financial risk of an investment in the Preferred Shares and the Conversion Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to entering into this Agreement or prior to making any offer, resale, pledge or transfer of any of the Preferred Shares or the Conversion Shares. ~~(c)~~ c. The Subscriber understands and agrees that the Subscriber is purchasing Preferred Shares directly from ~~the Company~~Seller. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by ~~the Company~~Seller, or any of its ~~officers~~ officers, directors or ~~directors~~representatives, expressly (other than those representations, warranties, covenants and agreements included in this ~~Subscription~~ Agreement) or by implication. (d) The Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) d. The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Preferred Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received and carefully reviewed the following items (collectively, the “Disclosure Documents”): (i) the SEC Documents, (ii) the Transaction Agreement, a copy of which will be filed by the Company with the SEC and (iii) the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company~~Seller’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Preferred Shares. The Subscriber has conducted its own investigation of the Company, the Target and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Company or the Placement Agent, the Subscriber has independently made its own analysis and decision to enter into the Transaction. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. ~~(f)~~ e. The Subscriber became aware of the transactions contemplated by this ~~Offering of the Shares~~ Agreement solely by means of direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the OfferingSeller. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) f. The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Preferred Shares~~, including those set forth in the SEC Documents~~. The Subscriber ~~is able to fend for itself in the transactions contemplated herein and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Preferred Shares, and the Subscriber has sought such independent accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. ~~(i) Alone, or together with any professional advisor(s), the~~ g. The Subscriber has adequately analyzed and fully considered the risks of an investment in the Preferred Shares and determined that the Preferred Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in ~~the Company~~Seller. The Subscriber acknowledges specifically that a possibility of total loss exists. ~~(j)~~ h. In making its decision to purchase the Preferred Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties ~~of the Company~~ set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. ~~(k)~~ i. The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the transactions contemplated by this ~~Offering of the Shares~~ Agreement or made any findings or determination as to the fairness of this ~~investment or the accuracy or adequacy of the SEC Documents~~investment. ~~(l) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (m)~~ j. The execution, delivery and performance by the Subscriber of this ~~Subscription~~ Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with ~~any federal or state statute, rule or regulation applicable to the Subscriber,~~ any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, ~~including~~ including, without limitation, its incorporation or formation ~~papers~~documents, bylaws, indenture of trust or partnership or operating agreement, as may be applicable, which would reasonably be expected to materially affect the legal authority of the Subscriber to comply in all material respects with the terms of this Agreement. The signature on this ~~Subscription~~ Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this ~~Subscription~~ Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~(n) Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any~~ k. No representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of ~~the Company~~Seller’s representations and warranties contained herein. ~~(o)~~ l. The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (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~~bank (collectively, a “Prohibited Investor”). The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Preferred Shares were legally derived. (p) The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares, (ii) the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary. (q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.

Appears in 1 contract

Samples: Subscription Agreement (CONX Corp.)

Subscriber Representations, Warranties and Covenants. ~~The~~ Subscriber hereby acknowledges, represents and warrants to to, and agrees with, the Company ~~that~~and any other persons acting as selling agents as follows: (a) ~~At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the~~ The Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), (8) or (9) of Regulation D under the Securities Act) as indicated in the questionnaire attached as Exhibit A hereto, and (ii) acquiring the ~~Shares only~~ Share for ~~its~~ his own ~~account~~ account, as principal, for investment and not ~~for the account of others, and not on behalf of any other account or person or~~ with a view toto resale, distribution or fractionalization in whole or in part, and has no present agreement, understanding or arrangement to subdivide, sell, assign, or ~~for offer~~ otherwise dispose of all or ~~sale in connection with,~~ any ~~distribution thereof in violation~~ part of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber is an institutional account as defined in FINRA Rule 4512(c). Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b).shares; (b) The Subscriber ~~understands~~ acknowledges his understanding that the Offering and sale of the Shares ~~are being offered in a transaction not involving any public offering within~~ is intended to be exempt from registration under the ~~meaning~~ Securities Xxx 0000 (the "Securities Act") by virtue of Section 4(2) of the Securities Act Regulation D adopted thereunder, and Rule 504 in particular, that except for purchasers who are foreign residents or residents of states where this offering has been qualified for trading, the Shares ~~delivered at the Closing have not been, and will not be, registered under the Securities Act. The Subscriber understands that the Shares may~~ can not be ~~resold~~sold, ~~transferred~~pledged, ~~pledged~~ assigned or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S unless they are subsequently registered under the Securities Act or ~~(iii) pursuant to another applicable~~ an exemption from ~~the~~ such registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effectis available. The Subscriber ~~acknowledges~~ also understands that ~~the~~ sales or transfers of his a Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be ~~required to bear~~ further restricted by the ~~financial risk~~ provisions of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares.certain state securities laws; (c) The Subscriber further understands and agrees that the ~~Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been~~ Company shall be under no ~~representations, warranties, covenants and agreements made~~ obligation whatsoever to ~~the Subscriber by the Company, or~~ include any of ~~its officers~~ said Shares in any future registration statement filed under the Securities Act and that, consequently, except for foreign residents and residents of states where this offering has been qualified for trading, the sale or ~~directors, expressly (other than those representations, warranties, covenants~~ transfer thereof in the future will be subject to significant restrictions as provided under the Securities Act and ~~agreements included in this Subscription Agreement) or by implication.~~certain state securities laws; (d) The ~~Subscriber’s acquisition~~ Subscriber (i) by himself or together with his advisor(s), has such knowledge and ~~holding of the Shares will not constitute or result~~ experience in ~~a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974~~financial, ~~as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. (e) The Subscriber acknowledges~~ business and ~~agrees~~ tax matters that the Subscriber ~~has received such information as~~ is capable of evaluating the ~~Subscriber deems necessary~~ merits of the prospective investment in ~~order to make~~ the Company and making an investment decision with respect to the ~~Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received~~ Company; and ~~carefully reviewed the following items (collectively, the “Disclosure Documents”): (i) the SEC Documents,~~ (ii) Subscriber is able to bear the ~~Transaction Agreement, a copy~~ risk of ~~which will be filed by the Company with the SEC and~~ this investment; (~~iii~~e) the investor presentation by the Company and the Target, a copy of which will be furnished by the Company to the SEC. The undersigned understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber ~~represents and agrees that~~ has been given the ~~Subscriber and the Subscriber’s professional advisor(s), if any, have had the full~~ opportunity to ask ~~the Company’s management questions~~questions of, and receive ~~such~~ answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Companyfrom, the ~~Target~~ officers and the Shares and the Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. Based on such information as the Subscriber has deemed appropriate and without reliance upon directors of the Company or the ~~Placement Agent~~Company's representatives concerning the terms and conditions of this Offering and other matters pertaining to this investment, and has been given the ~~Subscriber has independently made its own analysis and decision~~ opportunity to ~~enter into~~ obtain any additional information which the ~~Transaction. The Subscriber further acknowledges~~ Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of the information provided; (f) Other than the information contained in the ~~Disclosure Documents is subject to change~~aforesaid Confidential Private Offering Memorandum, ~~and that any changes to the information contained in the Disclosure Documents~~or other information, ~~including any changes based on updated information or changes in terms of the Transaction~~if any, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. (f) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the Company, the Placement Agent or a representative of the Company or the Placement Agent, and the Shares were offered given to the Subscriber ~~solely by direct contact between the Subscriber and the Company~~as described herein, ~~the Placement Agent~~ no representations or a representative of the Company or the Placement Agent. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company, Target or their respective affiliates or the Placement Agent for this Offering of the Shares. Neither the Subscriber, nor any of its directors, officers, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering. (g) The Subscriber acknowledges and agrees that (i) the Placement Agent has not warranties have been made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transaction, and (ii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company or the Transaction. (h) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Documents. The Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. (i) Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. (j) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made undersigned by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Company, Target or the Shares or the offer and sale of the Shares. The Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Company or any other person ~~or entity), whether~~ in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transaction. (k) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of connection with this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the SEC Documents. (l) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. (m) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agencyOffering, or any ~~agreement~~ officer, employee, agent, affiliate or ~~other undertaking, to which~~ subsidiary of any of them; (g) If the Subscriber is a ~~party or by which the Subscriber is bound~~corporation, ~~and~~partnership, ~~if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of~~ trust or ~~partnership or operating agreement~~other entity, ~~as may be applicable. The signature on~~ it is authorized and qualified to purchase the securities indicated in this Subscription Agreement ~~is genuine~~and authorized to make its capital contribution to the Company and otherwise to comply with its obligations under this Subscription Agreement, and the ~~signatory, if~~ person signing this Subscription Agreement on behalf of such entity had been duly authorized by such entity to do so; (h) If the Subscriber is an individual, ~~has legal competence~~ he is over 21 years of age and ~~capacity to execute~~ is a citizen and resident of the ~~same~~ state or country indicated herein; or, if the Subscriber is ~~not an individual the signatory has been duly authorized to execute the same~~a partnership, trust or other entity, each equity owner of such entity is over 21 years of age and ~~this Subscription Agreement constitutes~~ a ~~legal, valid and binding obligation~~ citizen of the ~~Subscriber, enforceable against~~ country indicated herein; or if the Subscriber ~~in accordance with its terms. (n) Neither~~ is a corporation, it is duly organized under the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness laws of the ~~Company’s representations~~ country set forth herein and warranties contained herein. (o) The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President if of the United States then also of the state set forth herein; (i) Any information which the Subscriber has heretofore furnished to the Company in the Purchaser Questionnaire and ~~administered by OFAC~~ in this Subscription Agreement, including information with respect to his financial position, investment objectives and business experience, is correct and complete as of the date of this Subscription Agreement and if there should be any material change in such information prior to his purchase of the Shares herein, he will immediately furnish such revised or corrected information to the Company; (~~“OFAC List”)~~j) ALL SUBSCRIBERS HERETO WHO ARE NEW YORK INVESTORS ARE REQUIRED TO REPRESENT THAT THEY UNDERSTANT THAT THE OFFERING MAY BE MADE ONLY TO THOSE NON-ACCREDITED RESIDENTS OF NEW YORK WHO (i) HAVE A NET WORTH ( ALONE OR JOINTLY WITH A SPOUSE, ~~or a person or entity prohibited by any OFAC sanctions program,~~ BUT EXCLUSIVE OF HOME FURNISHINGS AND AUTOMOBILES ) OF THREE TIMES THE AMOUNT OF INVESTMENT AND AN ADJUSTED GROSS INCOME ( ALONE OR JOINTLY WITH A SPOUSE ) OF $75,000 OR (ii) ~~a Designated National as defined in the Cuban Assets Control Regulations~~A NET WORTH (ALONE OR JOINTLY WITH A SPOUSE, ~~31 C.F.R. Part 515~~BUT EXCLUSIVE OF HOME FURNISHINGS AND AUTOMOBILES) OF 5 TIMES THE AMOUNT OF THE INVESTMENT. FURTHER, or BY SIGNING BELOW ALL NON-ACCREDITED NEW YORK INVESTORS CONFIRM THAT THEY MEET THE FOREGOING CRITERIA FOR INVESTMENT: ----------------------------------- (~~iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required~~ signature by ~~applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~New York residents only), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived. (p) The Subscriber acknowledges that (i) no disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares, (ii) the Placement Agent and each of its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company, and (iii) in connection with the issue and purchase of the Shares, the Placement Agent is acting solely as the Company’s placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and the Placement Agent has not acted as the Subscriber’s financial advisor or fiduciary. (q) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.

Appears in 1 contract

Samples: Subscription Agreement (Cactus Multimedia I Inc)

Common use of Subscriber Representations, Warranties and Covenants Clause in Contracts