SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Memorandum dated February [*], 2016 (such memorandum, together with all amendments thereof and exhibits thereto, the “Memorandum”), the Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company such number of shares of Units, and the Company agrees to sell the number of Units to the Subscriber as is set forth on the signature page hereof, at a per share price equal to $4.00 per Unit (the “Purchase Price”). The Purchase Price is payable by wire transfer of immediately available funds to: [*] 1.2 The Subscriber recognizes that the purchase of the Units involves a high degree of risk including, but not limited to risks relating to the Units, the Company and its operations. 1.3 The Subscriber represents that the Subscriber is an “Accredited Investor” as such term is defined in Rule 501 of Regulation D (“Regulation D”) promulgated under the Securities Act, as indicated by the Subscriber’s responses to the questions contained in Article VI hereof. 1.4 The Subscriber hereby acknowledges and represents that (a) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, unregistered and/or not traded on a national securities exchange, or the Subscriber has employed the services of a “purchaser representative” (as defined in Rule 501 of Regulation D), attorney and/or accountant to read all of the documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units to evaluate the merits and risks of such an investment on the Subscriber’s behalf; (b) the Subscriber recognizes the highly speculative nature of this investment; and (c) the Subscriber is able to bear the economic risk that the Subscriber hereby assumes. 1.5 The Subscriber hereby acknowledges receipt and careful review of this Agreement, the Memorandum (which includes the Risk Factors), including all exhibits thereto, and any documents which may have been made available upon request as reflected therein (collectively referred to as the “Offering Materials”). The Subscriber agrees to the terms of the Warrant and the Certificate of Designation attached to the Memorandum as exhibits. The Subscriber hereby represents that the Subscriber has been furnished by the Company during the course of the Offering with all information regarding the Company, the terms and conditions of the Offering and any additional information that the Subscriber has requested or desired to know, and has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the Company and the terms and conditions of the Offering. Capitalized terms not defined in this Agreement shall have the terms ascribed to them in the Memorandum. 1.6 In making the decision to invest in the Units and the underlying securities, the Subscriber has relied solely upon the information provided by the Company in the Offering Materials. To the extent necessary, the Subscriber has retained, at its own expense, and relied upon appropriate professional advice regarding the investment, tax and legal merits and consequences of this Agreement and the purchase hereunder. The Subscriber disclaims reliance on any advertisements of the Offering and statements made or information provided by any person or entity in the course of Subscriber’s consideration of an investment other than the Offering Materials. 1.7 The Subscriber hereby represents that the Subscriber, either by reason of the Subscriber’s business or financial experience or the business or financial experience of the Subscriber’s professional advisors (who are unaffiliated with and not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Subscriber’s own interests in connection with the transaction contemplated hereby. 1.8 The Subscriber hereby acknowledges that the Offering has not been reviewed by the United States Securities and Exchange Commission (the “SEC”) nor any state regulatory authority since the Offering is intended to be exempt from the registration requirements of Section 5 of the Securities Act, pursuant to Regulation D. The Subscriber understands that the Units have not been registered under the Securities Act or under any state securities or “blue sky” laws and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities unless it is registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such registration is available. 1.9 The Subscriber understands that the Units are being sold to the Subscriber by reason of a claimed exemption under the provisions of the Securities Act that depends, in part, upon the Subscriber’s investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing the Units for the Subscriber’s own account for investment and not with a view toward the resale or distribution to others. The Subscriber, if an entity, further represents that it was not formed for the purpose of purchasing the Units. 1.10 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and the underlying securities that such securities have not been registered and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the restrictions on the transferability of such Units or the underlying securities. The legend to be placed on each certificate shall be in form substantially similar to the following: 1.11 The Subscriber understands that the Company will review this Agreement and is hereby given authority by the Subscriber to make such inquiries that the Company deems necessary in order to verify the accredited investor status of the Subscriber and otherwise verify any other information provided to the Company by the Subscriber. The Subscriber hereby represents that the address of the Subscriber furnished by Subscriber on the signature page hereof is the Subscriber’s principal residence if Subscriber is an individual or its principal business address if it is a corporation or other entity. 1.12 The Subscriber represents that the Subscriber has full power and authority (corporate, statutory and otherwise) to execute and deliver this Agreement and to purchase the Units. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms. 1.13 If the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, it is authorized and qualified to invest in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so. 1.14 The Subscriber acknowledges that if he or she is a Registered Representative of an FINRA member firm, he or she must give such firm the notice required by the FINRA’s Rules of Fair Practice, receipt of which must be acknowledged by such firm in Section 6.3 below. 1.15 The Subscriber agrees not to issue any public statement with respect to the Subscriber’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulation. 1.16 The Subscriber agrees to hold the Company and its directors, officers, employees, affiliates, controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of (a) any sale or distribution of the Units or the underlying securities by the Subscriber in violation of the Securities Act or any applicable state securities or “blue sky” laws; or (b) any false representation or warranty or any breach or failure by the Subscriber to comply with any covenant made by the Subscriber in this Agreement (including the Confidential Investor Questionnaire contained in Article VI herein) or any other document furnished by the Subscriber to any of the foregoing in connection with this transaction.
Appears in 2 contracts
Samples: Subscription Agreement (Ecoark Holdings, Inc.), Subscription Agreement (Ecoark Holdings, Inc.)
SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Memorandum dated February [*], 2016 (such memorandum, together with all amendments thereof and exhibits thereto, the “Memorandum”)forth, the Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company such number of shares of 250,000 Units, and the Company agrees to sell the number of Units pursuant to the Subscriber terms and conditions set forth herein, and as is set forth on the signature page hereof, and the Company agrees to sell such Units to the Subscriber at a per share Unit price equal to of $4.00 per Unit 1.00 United States Dollars or a total purchase price of $250,000 United States Dollars (the “Purchase Price”). The Certificates for the Units and warrants will be delivered by the Company to the Subscriber promptly following the receipt of this Agreement and payment in full satisfaction of the Purchase Price is payable by wire transfer of immediately available funds to: [*]Price.
1.2 The Subscriber recognizes that the purchase of the Units involves a high degree of risk including, in that (i) the Company is a development stage company but not limited to risks relating to the Unitsdoes have specific business plans; (ii) following completion of its current financing, the Company will have approximately 66,800,000 shares of common stock issued and its operationsoutstanding; and (iii) the Units are being offered pursuant to an exemption from registration under Regulation S promulgated under the Securities Act of 1933, as amended (the “Act”). It is further acknowledged that the Undersigned: (i) is not relying upon any representations other than those specifically made by officers or representatives of the Company and (ii) has had access to the Company's officers and directors and has reviewed or had access to the Company’s business plan for purposes of obtaining any information requested by the Undersigned.
1.3 The Subscriber represents that the Subscriber is an “Accredited Investor” not a U.S. Person as such term is defined in Rule 501 of under Regulation D (“Regulation D”) S promulgated under the Securities Act, as indicated by the Subscriber’s responses to the questions contained in Article VI hereof.
1.4 The Subscriber hereby acknowledges and represents that (ai) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, listed and unregistered and/or not traded on a national securities exchangesecurities, or that the Subscriber has employed the services of a “purchaser representative” (as defined in Rule 501 of Regulation D)an investment advisor, attorney and/or accountant to read all of the documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units Subscribers to evaluate the merits and risks of such an investment on the Subscriber’s behalf; , (bii) the Subscriber recognizes the highly speculative nature of this investment; an investment in the Units, and (ciii) the Subscriber is able to bear the economic risk that and illiquidity which the Subscriber hereby assumesassumes by investing in the Units.
1.5 The Subscriber hereby acknowledges receipt and careful review of this Agreement, the Memorandum (which includes the Risk Factors), including all exhibits thereto, and any documents which may have been made available upon request as reflected therein (collectively referred to as the “Offering Materials”). The Subscriber agrees to the terms of the Warrant and the Certificate of Designation attached to the Memorandum as exhibits. The Subscriber i) hereby represents that the Subscriber has been furnished by the Company opportunity during the course of the Offering with all information regarding the Company, the terms and conditions of the Offering and any additional information that the Subscriber has requested or desired to know, and has been afforded this transaction the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the Company and the terms and conditions of this transaction and (ii) has been afforded the Offering. Capitalized terms not defined in this Agreement shall have opportunity to request any information which the terms ascribed to Subscriber believes will assist them in the Memorandummaking their investment decision.
1.6 In making the decision to invest in the Units and the underlying securities, the Subscriber has relied solely upon the information provided by the Company in the Offering Materials. (a) To the extent necessary, the Subscriber has retained, at its own expense, and relied upon the advice of appropriate professional advice professionals regarding the investmentpurchase, tax and legal merits and consequences of this Agreement and its acquisition of the purchase Units hereunder. .
(b) The Subscriber disclaims reliance on any advertisements represents that (i) the Subscriber was contacted regarding the Units by a representative of the Offering Company with whom the Subscriber had a prior substantial pre-existing relationship, and statements made (ii) no Units were offered or information provided sold to the Subscriber by means of any form of general solicitation or general advertising and in connection therewith the Subscriber did not (A) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio, whether closed circuit or generally available; or (B) attend any seminar, meeting or industry Subscriber conference whose attendees were invited by any person general solicitation or entity in the course of Subscriber’s consideration of an investment other than the Offering Materialsgeneral advertising.
1.7 The Subscriber hereby represents that the Subscriber, either by reason of the Subscriber’s business or financial experience or the business or financial experience of the Subscriber’s professional advisors (who are unaffiliated with and not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Subscriber’s own interests in connection with the transaction contemplated hereby.
1.8 The Subscriber hereby acknowledges that the Offering has Units have not been reviewed by the United States Securities and Exchange Commission (the “SEC”) nor any state regulatory authority since because of the Offering is Company’s representations that these Units are intended to be exempt from the registration requirements of Section 5 of the Securities Act, Act pursuant to Sections 3(b), 4(2) and/or 4(6) thereof, and Regulation D. S promulgated under the Act. The Subscriber agrees that the Subscriber will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Units, except in compliance with the Act and the rules and regulations promulgated thereunder.
1.8 The Subscriber understands that none of the Units have not been registered under the Securities Act or under any state securities or “blue sky” laws and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities unless it is registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such registration is available.
1.9 The Subscriber understands that the Units are being sold to the Subscriber by reason of a claimed exemption under the provisions of the Securities Act that which depends, in part, upon the Subscriber’s investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing acquiring the Units for the Subscriber’s own account for investment and not with a view toward the resale or distribution thereof to others. The Subscriber, if an entity, further represents that it was not formed for the purpose of purchasing acquiring the Units. The Subscriber understands that Rule 144 promulgated under the Act requires, among other conditions, a six month holding period prior to the resale (in limited amounts) of securities acquired in a non-public offering without having to satisfy the registration requirements under the Act.
1.9 The Subscriber understands and hereby acknowledges that the Company is under no obligation to register the Units under the Act or any state securities or “blue sky” laws other than as set forth in Section 2 hereof. The Subscriber consents that the Company may, if it desires, permit the transfer of the Units out of the Subscriber’s name only when the Subscriber’s request for transfer is accompanied by an opinion of counsel reasonably satisfactory to the Company that neither the sale nor the proposed transfer results in a violation of the Act or any applicable state “blue sky” laws (collectively, “Securities Laws”).
1.10 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and the underlying securities indicating that such securities Units have not been registered under the Act or any state securities or “blue sky” laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. Any and all certificates representing the Securities purchased and any and all securities issued in replacement thereof or in exchange thereof shall bear the following legend or one substantially similar thereto, which the Subscriber has read and understands: “THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR LEGEND OIL AND GAS LTD. RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO COUNSEL FOR LEGEND OIL AND GAS LTD. THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.”
1.11 The Subscriber is aware understands that the Company will make a notation in shall have the right to issue stop transfer instructions on its appropriate records with respect official stock records, and the Subscriber acknowledges that the Company has informed the Subscriber of its intention to the restrictions on the transferability of issue such Units or the underlying securities. The legend to be placed on each certificate shall be in form substantially similar to the following:instructions.
1.11 1.12 The Subscriber understands that the Company will review this Agreement and is hereby given authority by the Subscriber to make such inquiries that the Company deems necessary in order to verify reserves the accredited investor status unrestricted right, without further documentation or agreement on the part of the Subscriber Subscriber, to reject or limit any subscription and otherwise verify any other information provided to the Company by the Subscriber. accept subscriptions for Units.
1.13 The Subscriber hereby represents that the address of the Subscriber furnished by the Subscriber on the signature page hereof is the Subscriber’s principal residence residence, if the Subscriber is an individual individual, or its principal business address if it is a corporation or other entity.
1.12 1.14 The Subscriber represents that the Subscriber has full power and authority (corporate, statutory and otherwise) to execute and deliver this Agreement and to purchase acquire the UnitsUnits subscribed for hereby. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
1.13 1.15 If the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Kxxxx Plan, or other tax-exempt entity, then (a) it is authorized and qualified to invest become an Subscriber in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
1.14 The Subscriber acknowledges that if he or she , and (b) it is a Registered Representative duly organized, validly existing and in good standing under the laws of an FINRA member firm, he or she must give such firm the notice required by the FINRA’s Rules jurisdiction of Fair Practice, receipt of which must be acknowledged by such firm in Section 6.3 below.
1.15 The Subscriber agrees not to issue any public statement with respect to the Subscriber’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulationits organization.
1.16 The Subscriber agrees represents and warrants that it has not engaged, consented to nor authorized any broker, finder or intermediary to act on its behalf, directly or indirectly, as a broker, finder or intermediary in connection with the transaction contemplated by this Agreement. The Subscriber shall indemnify and hold harmless the Company from and its directors, officers, employees, affiliates, controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilitiesfees, costs commissions or other payments owing to any such person or firm acting on behalf of such Subscriber hereunder.
1.17 The Subscriber, whose name appears on the signature line below, shall be the beneficial owner of the Units for which such Subscriber acquires.
1.18 The Subscriber understands, acknowledges and expenses incurred by them agrees with the Company as a result of follows:
(a) The Company may reject any sale or distribution subscription at any time in its sole discretion. The execution of the Units or the underlying securities this Agreement by the Subscriber in violation hereby shall create no obligation on the part of the Securities Act or Company to accept any applicable state securities or “blue sky” laws; or subscription.
(b) any false representation The Subscriber hereby acknowledges and agrees that the subscription hereunder is irrevocable by the Subscriber, and that, except as required by law, the Subscriber is not entitled to cancel, terminate or warranty revoke this Agreement or any breach or failure by agreements of the Subscriber to comply with any covenant made by hereunder and that if the Subscriber in is an individual this Agreement shall survive the death or disability of the Subscriber and shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
(c) No federal or state agency or authority has made any finding or determination as to the accuracy or adequacy of the Offering Documents or as to the fairness of the terms of the Offering Documents nor any recommendation or endorsement of the Units. Any representation to the contrary is a criminal offense. In making an investment decision, the Subscriber must rely on its own examination of the Company, including the Confidential Investor Questionnaire contained in Article VI herein) or any other document furnished by the Subscriber to any of the foregoing in connection with this transactionmerits and risks involved.
Appears in 1 contract
SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Memorandum dated February [*], 2016 (such memorandum, together with all amendments thereof and exhibits thereto, the “Memorandum”)forth, the Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company such number of shares of Units, and the Company agrees to sell the number of Units pursuant to the Subscriber terms and conditions set forth herein, and as is set forth on the signature page hereof, and the Company agrees to sell such Units to the Subscriber at a per share Unit price equal to of $4.00 per Unit 2.00 United States Dollars or a total purchase price of $ United States Dollars (the “Purchase Price”). The Certificates for the Convertible Preferred Stock and Warrants will be delivered by the Company to the Subscriber promptly following the receipt of this Agreement and payment in full satisfaction of the Purchase Price is payable by wire transfer of immediately available funds to: [*]Price.
1.2 The Subscriber recognizes that the purchase of the Units involves a high degree of risk including, in that (i) the Company is a development stage company but not limited to risks relating to the Unitsdoes have specific business plans; (ii) following completion of its current financing, the Company will have approximately 49,000,000 shares of common stock issued and its operationsoutstanding on a fully diluted basis assuming full conversion of the Preferred Stock; and (iii) the Units are being offered pursuant to an exemption from registration under Regulation S promulgated under the Securities Act of 1933, as amended (the “Act”). It is further acknowledged that the Undersigned: (i) is not relying upon any representations other than those specifically made by officers or representatives of the Company and (ii) has had access to the Company’s officers and directors and has reviewed or had access to the Company’s business plan for purposes of obtaining any information requested by the Undersigned.
1.3 The Subscriber represents that the Subscriber is an “Accredited Investor” not a U.S. Person as such term is defined in Rule 501 of under Regulation D (“Regulation D”) S promulgated under the Securities Act, as indicated by the Subscriber’s responses to the questions contained in Article VI hereof.
1.4 The Subscriber hereby acknowledges and represents that (ai) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, listed and unregistered and/or not traded on a national securities exchangesecurities, or that the Subscriber has employed the services of a “purchaser representative” (as defined in Rule 501 of Regulation D)an investment advisor, attorney and/or accountant to read all of the documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units Subscribers to evaluate the merits and risks of such an investment on the Subscriber’s behalf; , (bii) the Subscriber recognizes the highly speculative nature of this investment; an investment in the Units, and (ciii) the Subscriber is able to bear the economic risk that and illiquidity which the Subscriber hereby assumesassumes by investing in the Units.
1.5 The Subscriber hereby acknowledges receipt and careful review of this Agreement, the Memorandum (which includes the Risk Factors), including all exhibits thereto, and any documents which may have been made available upon request as reflected therein (collectively referred to as the “Offering Materials”). The Subscriber agrees to the terms of the Warrant and the Certificate of Designation attached to the Memorandum as exhibits. The Subscriber i) hereby represents that the Subscriber has been furnished by the Company opportunity during the course of the Offering with all information regarding the Company, the terms and conditions of the Offering and any additional information that the Subscriber has requested or desired to know, and has been afforded this transaction the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the Company and the terms and conditions of this transaction and (ii) has been afforded the Offering. Capitalized terms not defined in this Agreement shall have opportunity to request any information which the terms ascribed to Subscriber believes will assist them in the Memorandummaking their investment decision.
1.6 In making the decision to invest in the Units and the underlying securities, the Subscriber has relied solely upon the information provided by the Company in the Offering Materials. (a) To the extent necessary, the Subscriber has retained, at its own expense, and relied upon the advice of appropriate professional advice professionals regarding the investmentpurchase, tax and legal merits and consequences of this Agreement and its acquisition of the purchase Units hereunder. .
(b) The Subscriber disclaims reliance on any advertisements represents that (i) the Subscriber was contacted regarding the Units by a representative of the Offering Company with whom the Subscriber had a prior substantial pre-existing relationship, and statements made (ii) no Units were offered or information provided sold to the Subscriber by means of any form of general solicitation or general advertising and in connection therewith the Subscriber did not (A) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio, whether closed circuit or generally available; or (B) attend any seminar, meeting or industry Subscriber conference whose attendees were invited by any person general solicitation or entity in the course of Subscriber’s consideration of an investment other than the Offering Materialsgeneral advertising.
1.7 The Subscriber hereby represents that the Subscriber, either by reason of the Subscriber’s business or financial experience or the business or financial experience of the Subscriber’s professional advisors (who are unaffiliated with and not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Subscriber’s own interests in connection with the transaction contemplated hereby.
1.8 The Subscriber hereby acknowledges that the Offering has Units have not been reviewed by the United States Securities and Exchange Commission (the “SEC”) nor any state regulatory authority since because of the Offering is Company’s representations that these Units are intended to be exempt from the registration requirements of Section 5 of the Securities Act, Act pursuant to Sections 3(b), 4(2) and/or 4(6) thereof, and Regulation D. S promulgated under the Act. The Subscriber agrees that the Subscriber will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Units, except in compliance with the Act and the rules and regulations promulgated thereunder.
1.8 The Subscriber understands that none of the Units have not been registered under the Securities Act or under any state securities or “blue sky” laws and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities unless it is registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such registration is available.
1.9 The Subscriber understands that the Units are being sold to the Subscriber by reason of a claimed exemption under the provisions of the Securities Act that which depends, in part, upon the Subscriber’s investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing acquiring the Units for the Subscriber’s own account for investment and not with a view toward the resale or distribution thereof to others. The Subscriber, if an entity, further represents that it was not formed for the purpose of purchasing acquiring the Units. The Subscriber understands that Rule 144 promulgated under the Act requires, among other conditions, a six month holding period prior to the resale (in limited amounts) of securities acquired in a non-public offering without having to satisfy the registration requirements under the Act.
1.9 The Subscriber understands and hereby acknowledges that the Company is under no obligation to register the Units under the Act or any state securities or “blue sky” laws other than as set forth in Section 2 hereof. The Subscriber consents that the Company may, if it desires, permit the transfer of the Units out of the Subscriber’s name only when the Subscriber’s request for transfer is accompanied by an opinion of counsel reasonably satisfactory to the Company that neither the sale nor the proposed transfer results in a violation of the Act or any applicable state “blue sky” laws (collectively, “Securities Laws”).
1.10 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and the underlying securities indicating that such securities Units have not been registered under the Act or any state securities or “blue sky” laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. Any and all certificates representing the Securities purchased and any and all securities issued in replacement thereof or in exchange thereof shall bear the following legend or one substantially similar thereto, which the Subscriber has read and understands: “THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR LEGEND OIL AND GAS LTD. RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO COUNSEL FOR LEGEND OIL AND GAS LTD. THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.”
1.11 The Subscriber is aware understands that the Company will make a notation in shall have the right to issue stop transfer instructions on its appropriate records with respect official stock records, and the Subscriber acknowledges that the Company has informed the Subscriber of its intention to the restrictions on the transferability of issue such Units or the underlying securities. The legend to be placed on each certificate shall be in form substantially similar to the following:instructions.
1.11 1.12 The Subscriber understands that the Company will review this Agreement and is hereby given authority by the Subscriber to make such inquiries that the Company deems necessary in order to verify reserves the accredited investor status unrestricted right, without further documentation or agreement on the part of the Subscriber Subscriber, to reject or limit any subscription and otherwise verify any other information provided to the Company by the Subscriber. accept subscriptions for Units.
1.13 The Subscriber hereby represents that the address of the Subscriber furnished by the Subscriber on the signature page hereof is the Subscriber’s principal residence residence, if the Subscriber is an individual individual, or its principal business address if it is a corporation or other entity.
1.12 1.14 The Subscriber represents that the Subscriber has full power and authority (corporate, statutory and otherwise) to execute and deliver this Agreement and to purchase acquire the UnitsUnits subscribed for hereby. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
1.13 1.15 If the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, then (a) it is authorized and qualified to invest become an Subscriber in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
1.14 The Subscriber acknowledges that if he or she , and (b) it is a Registered Representative duly organized, validly existing and in good standing under the laws of an FINRA member firm, he or she must give such firm the notice required by the FINRA’s Rules jurisdiction of Fair Practice, receipt of which must be acknowledged by such firm in Section 6.3 below.
1.15 The Subscriber agrees not to issue any public statement with respect to the Subscriber’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulationits organization.
1.16 The Subscriber agrees represents and warrants that it has not engaged, consented to nor authorized any broker, finder or intermediary to act on its behalf, directly or indirectly, as a broker, finder or intermediary in connection with the transaction contemplated by this Agreement. The Subscriber shall indemnify and hold harmless the Company from and its directors, officers, employees, affiliates, controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilitiesfees, costs commissions or other payments owing to any such person or firm acting on behalf of such Subscriber hereunder.
1.17 The Subscriber, whose name appears on the signature line below, shall be the beneficial owner of the Units for which such Subscriber acquires.
1.18 The Subscriber understands, acknowledges and expenses incurred by them agrees with the Company as a result of follows:
(a) The Company may reject any sale or distribution subscription at any time in its sole discretion. The execution of the Units or the underlying securities this Agreement by the Subscriber in violation hereby shall create no obligation on the part of the Securities Act or Company to accept any applicable state securities or “blue sky” laws; or subscription.
(b) any false representation The Subscriber hereby acknowledges and agrees that the subscription hereunder is irrevocable by the Subscriber, and that, except as required by law, the Subscriber is not entitled to cancel, terminate or warranty revoke this Agreement or any breach or failure by agreements of the Subscriber to comply with any covenant made by hereunder and that if the Subscriber in is an individual this Agreement shall survive the death or disability of the Subscriber and shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
(c) No federal or state agency or authority has made any finding or determination as to the accuracy or adequacy of the Offering Documents or as to the fairness of the terms of neither the Offering Documents nor any recommendation or endorsement of the Units. Any representation to the contrary is a criminal offense. In making an investment decision, the Subscriber must rely on its own examination of the Company, including the Confidential Investor Questionnaire contained in Article VI herein) or any other document furnished by the Subscriber to any of the foregoing in connection with this transactionmerits and risks involved.
Appears in 1 contract
SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Memorandum dated February [*], 2016 (such memorandum, together with all amendments thereof and exhibits thereto, the “Memorandum”), the The Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company such number of shares of Units, and the Company agrees to sell the number of Units to the Subscriber as is set forth on the signature page hereof, at a per share Unit price equal to $4.00 1,000 per Unit (the “Purchase Price”)Unit. The Purchase Price purchase price is payable by personal or business check or money order made payable to “Clean Wind Energy Tower, Inc.” contemporaneously with the execution and delivery of this Agreement by the Subscriber. Subscribers may also pay the subscription amount by, wire transfer of immediately available funds to: [*]
1.2 Name: CLEAN WIND ENERGY TOWER, INC. Bank: SunTrust Bank Account: 1000145330774 ABA #: 000000000 Address; Annapolis, Maryland The Subscriber recognizes that the purchase of the Units involves a high degree of risk including, but not limited to risks relating to including that set forth in the Units, the Company and its operationsConfidential Information Memorandum.
1.3 1.2 The Subscriber represents that the Subscriber is an “Accredited Investoraccredited investor” as such term is defined in Rule 501 of Regulation D (“Regulation D”) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), as indicated by the Subscriber’s responses to the questions contained in Article VI VII hereof, and that the Subscriber is able to bear the economic risk of an investment in the Units.
1.4 1.3 The Subscriber hereby acknowledges and represents that (a) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, unregistered and/or not thinly traded on a national securities exchange, the OTCBB or the Subscriber has employed the services of a “purchaser representative” (as defined in Rule 501 of Regulation D), attorney and/or accountant to read all of the documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units to evaluate the merits and risks of such an investment on the Subscriber’s behalf; (b) the Subscriber recognizes the highly speculative nature of this investment; and (c) the Subscriber is able to bear the economic risk that the Subscriber hereby assumes.
1.5 1.4 The Subscriber hereby acknowledges receipt and careful review of this Agreement, the Memorandum 34 Act Reports (which includes the Risk Factorsas defined herein), including all exhibits theretothereto and the Risk Factors included in our Form 10-K Annual Report filed with the Securities and Exchange, and any documents which may have been made available upon request as reflected therein (collectively referred to as the “Offering Materials”). The Subscriber agrees to the terms of the Warrant ) and the Certificate of Designation attached to the Memorandum as exhibits. The Subscriber hereby represents that the Subscriber has been furnished by the Company during the course of the Offering with all information regarding the Company, the terms and conditions of the Offering and any additional information that the Subscriber has requested or desired to know, and has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the Company and the terms and conditions of the Offering. Capitalized terms Notwithstanding the foregoing, the Subscriber hereby confirms that it has not defined received from the Company nor is it in this Agreement shall have possession of any material nonpublic information relating to the terms ascribed to them in the MemorandumCompany and its operations.
1.6 (a) In making the decision to invest in the Units and the underlying securities, the Subscriber has relied solely upon the information provided by the Company in the Offering Materials. To the extent necessary, the Subscriber has retained, at its own expense, and relied upon appropriate professional advice regarding the investment, tax and legal merits and consequences of this Agreement and the purchase of the Units hereunder. The Subscriber disclaims reliance on any advertisements of the Offering and statements made or information provided by any person or entity in the course of Subscriber’s consideration of an investment in the Units other than the Offering Materials.
1.7 (b) The Subscriber represents that (i) the Subscriber was contacted regarding the sale of the Units by the Company (or an authorized agent or representative thereof) with whom the Subscriber had a prior substantial pre-existing relationship and (ii) no Units were offered or sold to it by means of any form of general solicitation or general advertising, and in connection therewith, the Subscriber did not (A) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio, whether closed circuit, or generally available; or (B) attend any seminar meeting or industry investor conference whose attendees were invited by any general solicitation or general advertising.
1.6 The Subscriber hereby represents that the Subscriber, either by reason of the Subscriber’s business or financial experience or the business or financial experience of the Subscriber’s professional advisors (who are unaffiliated with and not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Subscriber’s own interests in connection with the transaction contemplated hereby.
1.8 1.7 The Subscriber hereby acknowledges that the Offering has not been reviewed by the United States Securities and Exchange Commission (the “SEC”) nor any state regulatory authority since the Offering is intended to be exempt from the registration requirements of Section 5 of the Securities Act, Act pursuant to Regulation D. D promulgated thereunder. The Subscriber understands that the Units Securities have not been registered under the Securities Act or under any state securities or “blue sky” laws and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities Securities unless it is they are registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such registration is available.
1.9 1.8 The Subscriber understands that the Securities comprising the Units are being sold to have not been registered under the Subscriber Securities Act by reason of a claimed exemption under the provisions of the Securities Act that depends, in part, upon the Subscriber’s investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing the Units Securities for the Subscriber’s own account for investment and not with a view toward the resale or distribution to others. The Subscriber, if an entity, further represents that it was not formed for the purpose of purchasing the UnitsSecurities.
1.9 The Subscriber understands that there is a limited public market for the Common Stock issuable upon conversion of the Debentures. The Subscriber understands that even if more significant public market develops for such Securities, Rule 144 (“Rule 144”) promulgated under the Securities Act requires for non-affiliates, among other conditions, a six month holding period prior to the resale (in limited amounts) of securities acquired in a non-public offering without having to satisfy the registration requirements under the Securities Act. The Subscriber understands and hereby acknowledges that the Company is under no obligation to register any of the Securities under the Securities Act or any state securities or “blue sky” laws other than as set forth in Article V.
1.10 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and the underlying securities Securities that such securities Securities have not been registered under the Securities Act or any state securities or “blue sky” laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the restrictions on the transferability of such Units or the underlying securitiesSecurities. The legend to be placed on each certificate shall be in form substantially similar to the following:: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY STATE SECURITIES OR “BLUE SKY LAWS,” AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.”
1.11 The Subscriber understands that the Company will review this Agreement and is hereby given authority by the Subscriber to make such inquiries call Subscriber’s bank or place of employment or otherwise review the financial standing of the Subscriber; and it is further agreed that the Company, at its sole discretion, reserves the unrestricted right, without further documentation or agreement on the part of the Subscriber, to reject or limit any subscription, to accept subscriptions for fractional Units and to close the Offering to the Subscriber at any time and that the Company deems necessary in order will issue stop transfer instructions to verify the accredited investor status of the Subscriber and otherwise verify any other information provided its transfer agent with respect to the Company by the Subscriber. such Securities.
1.12 The Subscriber hereby represents that the address of the Subscriber furnished by Subscriber on the signature page hereof is the Subscriber’s principal residence if Subscriber is an individual or its principal business address if it is a corporation or other entity.
1.12 1.13 The Subscriber represents that the Subscriber has full power and authority (corporate, statutory and otherwise) to execute and deliver this Agreement and to purchase the Units. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
1.13 1.14 If the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, it is authorized and qualified to invest in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
1.14 1.15 The Subscriber acknowledges that if he or she is a Registered Representative of an FINRA member firm, he or she must give such firm the notice required by the FINRA’s Rules of Fair Practice, receipt of which must be acknowledged by such firm in Section 6.3 7.3 below.
1.15 1.16 The Subscriber acknowledges that at such time, if ever, as the Securities are registered, sales of the Securities will be subject to state securities laws.
1.17 The Subscriber represents that the Subscriber has read and fully understands the risks associated with the Company and the Units.
(a) The Subscriber agrees not to issue any public statement with respect to the Subscriber’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulation.
1.16 (b) The Company agrees not to disclose the names, addresses or any other information about the Subscribers, except as required by law.
1.19 The Subscriber agrees to hold the Company and its directors, officers, employees, affiliates, controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of (a) any sale or distribution of the Units or the underlying securities Securities by the Subscriber in violation of the Securities Act or any applicable state securities or “blue sky” laws; or (b) any false representation or warranty or any breach or failure by the Subscriber to comply with any covenant made by the Subscriber in this Agreement (including the Confidential Investor Questionnaire contained in Article VI VII herein) or any other document furnished by the Subscriber to any of the foregoing in connection with this transaction.
1.20 The Subscriber represents that neither the Subscriber or any affiliates of the Subscriber has an open short position in the common stock of the Company and the Subscriber agrees that, so long as any of the Securities remain outstanding the Subscriber will not enter into or effect any “short sales” (as such term is defined in Rule 3b-3 of the 0000 Xxx) of the Common Stock, or shares of common stock issuable upon conversion of the Debentures, or hedging transaction which establishes a net short position with respect to the Common Stock or shares of common stock issuable upon conversion of the Debentures.
Appears in 1 contract
Samples: Securities Purchase Agreement (Clean Wind Energy Tower, Inc.)
SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Memorandum dated February [*], 2016 (such memorandum, together with all amendments thereof and exhibits thereto, the “Memorandum”)forth, the Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company such number of shares of Units, Units as is set forth upon the signature page hereof at a price equivalent to $100,000 per Unit and the Company agrees to sell the number of such Units to the Subscriber as is for said purchase price. The terms of the Warrants are set forth on in the signature page hereof, at a per share price equal form of Warrant to $4.00 per Unit Purchase Common Stock attached as an exhibit to the Confidential Private Placement Memorandum (the “Purchase Price”"Memorandum"). The Purchase Price purchase price is payable by personal or business check, wire transfer of immediately available funds to: [*]or money order made payable to "NatWest Bank, USA, Escrow Agent F/B/O Xytronyx, Inc." contemporaneously with the execution and delivery of this Agreement. The certificates for shares of Common Stock and the Warrants constituting the Units will be delivered by the Company in accordance with the terms set forth in Article III, Section 3.2 hereof. The Subscriber understands, however, that the purchase of Units is contingent upon the acceptance of this Subscription Agreement by the Company and sales (against cleared funds) of at least 10 Units prior to the Termination Date as defined in Article III, Section 3.1 hereof.
1.2 The Subscriber hereby acknowledges receipt of the Memorandum and that the Subscriber has carefully reviewed the Memorandum. The Subscriber recognizes that the purchase of the Units involves a high degree of risk including, but not in that (i) the Company remains a development stage business with limited to risks relating operating history and may require substantial funds in addition to the Unitsproceeds of the Offering; (ii) an investment in the Company is highly speculative, and only investors who can afford the loss of their entire investment should consider investing in the Company and its operationsthe Units; (iii) the Subscriber may not be able to liquidate his investment; (iv) transferability of the Securities underlying the Units is extremely limited; and (v) in the event of a disposition, the Subscriber could sustain the loss of his entire investment, as well as the other risk factors set forth in the Memorandum.
1.3 The Subscriber represents that the Subscriber is an “Accredited Investor” "accredited investor" as such term is defined in Rule 501 of Regulation D (“Regulation D”) promulgated under the Securities Act of 1933, as amended (the "Act"), as indicated by the Subscriber’s his responses to the questions contained in Article VI VII hereof, and that Subscriber is able to bear the economic risk of an investment in the Units.
1.4 The Subscriber hereby acknowledges and represents that (ai) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, listed and unregistered and/or not traded on a national securities exchangesecurities, or the Subscriber has employed the services of a “purchaser representative” (as defined in Rule 501 of Regulation D)an investment advisor, attorney and/or accountant to read all of the documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units and to evaluate the merits and risks of such an investment on the Subscriber’s 's behalf; and (bii) the Subscriber recognizes the highly speculative nature of this investment; and (c) the Subscriber is able to bear the economic risk that the Subscriber hereby assumes.
1.5 The Subscriber hereby acknowledges receipt represents that the Subscriber either (i) has a preexisting personal or business relationship with the Company or its respective officers or directors or (ii) by reason of the Subscriber's business or financial experience or the business or financial experience of the Subscriber's professional advisors (who are unaffiliated with and careful review who are not compensated by the Company of this Agreement, any affiliate or selling agent of the Memorandum (which includes the Risk Factors)Company, including all exhibits theretothe Placement Agent, and any documents which may have been made available upon request as reflected therein (collectively referred directly or indirectly) has the capacity to as protect the “Offering Materials”). The Subscriber agrees to Subscriber's own interest in connections with the terms of the Warrant and the Certificate of Designation attached to the Memorandum as exhibits. transaction contemplated hereby.
1.6 The Subscriber hereby represents that the (i) Subscriber has been furnished by the Company during the course of the Offering this transaction with all information regarding the Company, the terms and conditions of the Offering and any additional information that the Company which Subscriber has requested or desired to know, and ; (ii) Subscriber has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the Company and the terms and conditions of the Offering. Capitalized terms not defined in this Agreement shall have the terms ascribed to them in the Memorandum.
1.6 In making the decision to invest in the Units ; and the underlying securities, the (iii) Subscriber has relied solely upon the received any additional information provided by the Company in the Offering Materials. To the extent necessary, the which Subscriber has retained, at its own expense, and relied upon appropriate professional advice regarding the investment, tax and legal merits and consequences of this Agreement and the purchase hereunder. The Subscriber disclaims reliance on any advertisements of the Offering and statements made or information provided by any person or entity in the course of Subscriber’s consideration of an investment other than the Offering Materialsrequested.
1.7 The Subscriber hereby represents that the Subscriber, either by reason of the Subscriber’s business or financial experience or the business or financial experience of the Subscriber’s professional advisors (who are unaffiliated with and not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Subscriber’s own interests in connection with the transaction contemplated hereby.
1.8 The Subscriber hereby acknowledges that the Offering offering of Units and the Securities underlying such Units has not been reviewed by the United States Securities and Exchange Commission (the “SEC”"Commission") nor or any state regulatory authority authority, since the Offering is intended to be exempt from the registration requirements of Section 5 of the Securities Act, Act pursuant to Regulation D. D promulgated under the Act. The Subscriber understands agrees that Subscriber will not sell or otherwise transfer the Units have not been Securities unless they are registered under the Securities Act or under any state securities or “blue sky” laws and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities unless it is registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such registration is availableavailable and until such Subscriber complies with the transfer restrictions set forth in Section 1.9 hereof.
1.9 1.8 The Subscriber understands that the Units are being sold to the Subscriber by reason of a claimed exemption under the provisions of the Securities Act that depends, in part, upon the Subscriber’s investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing the Units for the Subscriber’s 's own account for investment and not with a view toward the resale or distribution of the Units, the underlying Common Stock or the Warrants.
1.9 The Subscriber understand that even though a public market exists for the Common Stock, Rule 144 ("Rule 144") promulgated under the Act requires, among other conditions, a two-year holding period prior to othersthe resale (in limited amounts) of securities acquired in a non-public offering without having to satisfy the registration requirements under the Act. The SubscriberSubscriber consents that the Company may, if it desires, permit the transfer of its Securities, subject to the provisions of applicable law, out of Subscriber's name only when his request for transfer is accompanied by an entityopinion of counsel reasonable satisfactory to the Company that neither the sale nor the proposed transfer results in a violation of the Act or any applicable state securities or "blue sky" laws. The Subscriber agrees to hold the Company and its respective directors, further represents that it was not formed for officers, agents and controlling persons and their respective heirs, representatives, successors, and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any misrepresentation made by such Subscriber contained herein or in the purpose Confidential Purchaser Questionnaire contained in Article VI hereof or any sale or distribution by the undersigned Subscriber in violation of purchasing the UnitsAct or any applicable state securities or "blue sky" laws.
1.10 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and Common Stock, the underlying securities Warrants or the Common Stock issuable upon conversion or exercise thereof, stating that such securities Securities have not been registered under the Act or any state securities or "blue sky" laws and setting forth or referring to the restrictions restriction on transferability and sale thereof contained in this Agreement. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the restrictions on the transferability of such Units or the underlying securities. The legend to be placed on each certificate shall be in form substantially similar to the following:.
1.11 The Subscriber understands that the Company will review this Agreement and is hereby given authority by the Subscriber to make such inquiries call Subscriber's bank or place of employment or otherwise review the financial standing of the Subscriber; and it is further agreed that the Company deems necessary in order reserves the unrestricted right to verify reject or limit any subscription and to close the accredited investor status of Offering to the Subscriber and otherwise verify at any other information provided to the Company by the Subscriber. time.
1.12 The Subscriber hereby represents that the address of the Subscriber furnished by Subscriber on the signature page hereof is the Subscriber’s 's principal residence if Subscriber is an individual individual, or its principal business address if it is a corporation or other entity.
1.12 The Subscriber represents that the Subscriber has full power and authority (corporate, statutory and otherwise) to execute and deliver this Agreement and to purchase the Units. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
1.13 If the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, it is authorized and qualified to invest in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
1.14 The Subscriber acknowledges that if he or she is a Registered Representative of an FINRA NASD member firm, he or she must give such firm the notice required by the FINRA’s NASD's Rules of Fair Practice, receipt of which must be acknowledged by such firm in Section 6.3 9 below.
1.15 The Subscriber agrees not to issue any public statement with respect to the Subscriber’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulation.
1.16 The Subscriber agrees to hold the Company and its directors, officers, employees, affiliates, controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of (a) any sale or distribution of the Units or the underlying securities by the Subscriber in violation of the Securities Act or any applicable state securities or “blue sky” laws; or (b) any false representation or warranty or any breach or failure by the Subscriber to comply with any covenant made by the Subscriber in this Agreement (including the Confidential Investor Questionnaire contained in Article VI herein) or any other document furnished by the Subscriber to any of the foregoing in connection with this transaction.
Appears in 1 contract
SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Memorandum dated February [*], 2016 (such memorandum, together with all amendments thereof and exhibits thereto, the “Memorandum”)forth, the Subscriber hereby irrevocably subscribes purchases for itself and agrees to purchase from the Company such number of shares of Units, Units and the Company agrees to sell the number of Units to the Subscriber such number of Units, having a value as is set forth on the signature page hereof, hereof at a price per share price Unit equal to $4.00 per Unit the Purchase Price (as defined on the “Purchase Price”signature page hereof). The Purchase Price is payable by wire transfer of immediately available funds to: [*]as directed by the Company, contemporaneously with the execution and delivery of this Agreement, as supplemented.
1.2 The Subscriber hereby warrants and represents that it recognizes that the purchase of the Units involves a high degree of risk including, but not limited to risks relating to to, the Units, following: (a) an investment in the Company is highly speculative and only investors who can afford the loss of their entire investment should consider investing in the Company and the Units; (b) the Subscriber may not be able to liquidate its operationsinvestment; and (c) transferability of the Common Shares and Warrants forming the Units and the Additional Shares issuable upon due exercise of the Warrants (collectively, the “Securities”) is limited.
1.3 The Subscriber represents that the Subscriber it is an “Accredited Investoraccredited investor” as such term is defined in Rule 501 501(a) of Regulation D (“Regulation D”) promulgated under the Securities Act, as indicated by the Subscriber’s responses to the questions contained in Article VI VII hereof, and by reason of its business and financial experience and the business and financial experience of those persons it may have retained to advise it with respect to its investment in the Securities it, together with such advisors, has such knowledge, sophistication and experience in business and financial matters that it is capable of evaluating the merits and risks of the prospective investment.
1.4 The Subscriber hereby acknowledges and represents that that: (a) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, unregistered and/or not traded on a national securities exchangeunregistered, or the Subscriber Subscriber, at its own risk and expense, has employed the services of a “purchaser representative” (as defined in Rule 501 501(h) of Regulation D), attorney and/or accountant to read all of the documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units to evaluate the merits and risks of such an investment on the Subscriber’s behalf; (b) the Subscriber recognizes the highly speculative nature of this investment; and (c) the Subscriber is able to bear the economic risk that the Subscriber hereby assumesloss of its entire investment.
1.5 The Subscriber hereby acknowledges receipt and careful review of this Agreement, represents that (i) the Memorandum (which includes Subscriber was contacted regarding the Risk Factors), including all exhibits thereto, and any documents which may have been made available upon request as reflected therein (collectively referred to as the “Offering Materials”). The Subscriber agrees to the terms sale of the Warrant and the Certificate of Designation attached to the Memorandum as exhibits. The Subscriber hereby represents that the Subscriber has been furnished Units by the Company during the course of the Offering with all information regarding the Company, the terms and conditions of the Offering and any additional information that or a Company agent, with whom the Subscriber has requested had a prior substantial pre-existing relationship and (ii) no Units were offered or desired sold to knowit by means of any form of general solicitation or general advertising, and has been afforded in connection therewith, the opportunity to ask questions of and Subscriber did not receive answers from duly authorized officers any general solicitation or general advertising including, but not limited to: (A) receive or review any advertisement, article, notice or other representatives of the Company concerning the Company and the terms and conditions of the Offering. Capitalized terms not defined communication published in this Agreement shall have the terms ascribed to them in the Memorandumany newspaper, magazine or similar media or broadcast over television or radio, whether closed circuit, or generally available; or (B) attend any seminar meeting or industry investor conference whose attendees were invited by any general solicitation or general advertising.
1.6 In making the decision to invest in the Units and the underlying securities, the Subscriber has relied solely upon the information provided by the Company in the Offering Materials. To the extent necessary, the Subscriber has retained, at its own expense, and relied upon appropriate professional advice regarding the investment, tax and legal merits and consequences of this Agreement and the purchase hereunder. The Subscriber disclaims reliance on any advertisements of the Offering and statements made or information provided by any person or entity in the course of Subscriber’s consideration of an investment other than the Offering Materials.
1.7 The Subscriber hereby represents that the Subscriber, either by reason of the Subscriber’s business or financial experience or the business or financial experience of the Subscriber’s professional advisors (who are unaffiliated with and not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Subscriber’s own interests in connection with the transaction contemplated hereby.
1.8 1.7 The Subscriber hereby acknowledges that the Offering has not been reviewed by the United States Securities and Exchange Commission (the “SEC”) nor any U.S. state or Canadian provincial securities regulatory authority since as the Offering is intended to be exempt from the registration requirements of Section 5 of the Securities Act of 1933, as amended (the “Act”), pursuant to Regulation D. D thereunder and from the registration requirements of applicable state “blue sky” securities laws or regulations.
1.8 The Subscriber understands that the Units Securities have not been registered under the Securities Act or under any U.S. state or Canadian provincial securities or “blue sky” laws or regulations by reason of a claimed exemption that depends, in part, upon the Subscriber’s investment intention and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities Securities unless it is they are registered under the Securities Act and under any applicable state securities or “blue sky” laws or regulations or unless an exemption from such registration is available.
1.9 The , subject to Section 1.11 herein. Without limiting the foregoing, the Company acknowledges and agrees that a Subscriber understands may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Units are being sold Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Subscriber may transfer pledged or secured Securities to the Subscriber by reason pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Subscriber’s expense, the Company will execute and deliver such reasonable documentation as a claimed exemption pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities, including, if the Securities are subject to registration pursuant to this Agreement, the preparation and filing of any required prospectus supplement under Rule 424(b)(3) under the provisions Securities Act or other applicable provision of the Securities Act that depends, in part, upon to appropriately amend the Subscriber’s investment intentionlist of Selling Stockholders thereunder. In this connectionrespect, the Subscriber hereby represents that the Subscriber is purchasing the Units Securities for the Subscriber’s own account for investment and not with a view toward the resale or distribution to others. The Subscriber, if an entity, further represents that it was not formed for the purpose of purchasing the UnitsSecurities.
1.9 The Subscriber understands that Rule 144 (“Rule 144”) promulgated under the Act requires for non-affiliates, among other conditions, a one (1) year holding period prior to the resale in the United States (in limited amounts) of securities acquired in a non-public offering without having to satisfy the registration requirements under the Act. The Subscriber understands and hereby acknowledges that except as set forth herein the Company is under no obligation to register any of the Securities under the Act or any state securities or “blue sky” laws.
1.10 The Subscriber further understands and agrees that it shall not sell the Securities to a purchaser in any province of Canada at any time within the four (4) month period following the date of their issuance and any subsequent purchaser outside of Canada before the end of that period must agree to comply with this restriction for the remainder of such period. The Subscriber further agrees that if it decides to offer, sell or otherwise transfer, pledge or hypothecate all or any part of the Securities, it will not offer, sell or otherwise transfer, pledge or hypothecate any of such Securities (other than pursuant to an effective registration statement under the Act), directly or indirectly unless an offer and sale or other disposition is:
(i) made in accordance with an effective registration statement under the Act covering such disposition; or
(ii) to the Company; or
(iii) made outside the United States in accordance with the requirements of Rule 904 of Regulation S under the Act; or
(iv) in a transaction that does not require registration under the Act or any applicable United States state laws, rules and regulations governing the offer and sale of securities, and it has theretofore furnished to the Company an opinion to that effect of counsel of recognized standing reasonably satisfactory to the Company; provided, that no opinion shall be required for any sale pursuant to Rule 144 or 144(k), or pursuant to any bona fide pledge in connection with a margin account.
1.11 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and the underlying securities Securities that such securities Securities have not been registered under the Act or any state securities or “blue sky” laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the restrictions on the transferability of such Units or the underlying securitiesSecurities. The legend to be placed on each certificate shall be in form substantially similar to the following:: UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY SHALL NOT TRADE THE SECURITY BEFORE [INSERT DATE THAT IS 4 MONTHS AND A DAY AFTER DISTRIBUTION DATE]. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK EXCHANGE (“TSX”); HOWEVER, THE SAID SECURITIES CANNOT BE TRADED THROUGH THE FACILITIES OF TSX SINCE THEY ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY ANY CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON TSX. THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE ISSUER, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE ACT, OR (C) IN ACCORDANCE WITH AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION AFTER PROVIDING A SATISFACTORY LEGAL OPINION TO THE ISSUER. Provided that if the Securities are being sold pursuant to Section 1.10 (iii) above, in the case of a resale to a purchaser in Canada, following the date which is four (4) months and a day after the date of issuance to the Subscriber, the Company covenants and represents that the legend may be removed by providing a declaration to the transfer agent for the Securities of the Company substantially as attached hereto as Schedule “C” (or as the Company may prescribe from time to time) upon the sale of the Securities by the Subscriber. Certificates evidencing the Shares and Warrant Shares shall not contain any legend (including the legend set forth in Section 1.11), (i) while a registration statement (including the Registration Statement) covering the resale of such security is effective under the Securities Act, or (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, or (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144(k), or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission). The Company shall cause its counsel to issue a legal opinion to the Company’s transfer agent promptly after the Effective Date if required by the Company’s transfer agent to effect the removal of the legend hereunder. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Warrant Shares, such Warrant Shares shall be issued free of all legends. The Company agrees that following the Effective Date or at such time as such legend is no longer required under this Section 1.11, it will, no later than three Trading Days following the delivery by a Subscriber to the Company’s transfer agent (with a photocopy to the Company) of a certificate representing Shares or Warrant Shares, as the case may be, issued with a restrictive legend (such third Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Subscriber a certificate representing such shares that is free from all restrictive and other legends. Except as required by law or in connection with a Suspension (as defined in Section 5.2(b)(iii), the Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section. Certificates for Securities subject to legend removal hereunder shall be transmitted by the transfer agent of the Company to the Subscribers by crediting the account of the Subscriber’s prime broker with the Depository Trust Company System, if the Company is a participant in such system.
1.11 1.12 The Subscriber understands that the Company will review this Agreement and is are hereby given authority by the Subscriber to make such inquiries call the Subscriber’s bank or place of employment or otherwise review the financial standing of the Subscriber; and it is further agreed that the Company, at its sole discretion, reserves the unrestricted right, without further documentation or agreement on the part of the Subscriber, to reject or limit any purchase, to accept purchases for fractional Units and to close the Offering to the Subscriber at any time and that the Company deems necessary in order will issue stop transfer instructions to verify the accredited investor status of the Subscriber and otherwise verify any other information provided its transfer agent with respect to the Company by the Subscriber. such Securities.
1.13 The Subscriber hereby represents that the address of the Subscriber furnished by Subscriber on the signature page hereof is the Subscriber’s principal residence if the Subscriber is an individual or its principal business address if it is a corporation or other entityentity and that Subscriber is not resident in any province of Canada.
1.12 1.14 The Subscriber represents that the Subscriber has full power and authority (corporate, statutory and otherwise) to execute and deliver this Agreement and to purchase the Units. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
1.13 1.15 If the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, it is authorized and qualified to invest in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
1.14 1.16 The Subscriber acknowledges that if he or she is a Registered Representative of an FINRA National Association of Securities Dealers, Inc. (“NASD”) member firm, he or she must give such firm the notice required by the FINRANASD’s Rules of Fair Practice, receipt of which must be acknowledged by such firm in Section 6.3 7.4 below.
1.15 (a) The Subscriber agrees not to issue any public statement with respect to the Subscriber’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulation.
1.16 The Subscriber agrees to hold the Company and its directors, officers, employees, affiliates, controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of (a) any sale or distribution of the Units or the underlying securities by the Subscriber in violation of the Securities Act or any applicable state securities or “blue sky” laws; or (b) any false representation or warranty or any breach or failure by The Company agrees not to disclose the Subscriber to comply with any covenant made by the Subscriber in this Agreement (including the Confidential Investor Questionnaire contained in Article VI herein) name, address or any other document furnished information about the Subscriber, except as required by the law or applicable regulatory authorities.
1.18 The Subscriber represents and warrants that it has not engaged, consented to or authorized any of the foregoing broker, finder or intermediary to act on its behalf, directly or indirectly, as a broker, finder or intermediary in connection with the transactions contemplated by this transactionAgreement. The Subscriber hereby agrees to indemnify and hold harmless the Company from and against all fees, commissions or other payments owing to any such person or firm acting on behalf of the Subscriber hereunder.
Appears in 1 contract
SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Memorandum dated February [*], 2016 (such memorandum, together with all amendments thereof and exhibits thereto, the “Memorandum”), the The Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company such number of shares of Units, and the Company agrees to sell the number of Units to the Subscriber as is set forth on the signature page hereof, at a per share Unit price equal to $4.00 1,000 per Unit (the “Purchase Price”)Unit. The Purchase Price purchase price is payable by personal or business check or money order made payable to “Clean Wind Energy Tower, Inc.” contemporaneously with the execution and delivery of this Agreement by the Subscriber. Subscribers may also pay the subscription amount by, wire transfer of immediately available funds to: [*]
1.2 Name: CLEAN WIND ENERGY TOWER, INC. Bank: SunTrust Bank Account: 1000145330774 ABA #: 000000000 Address; Annapolis, Maryland The Subscriber recognizes that the purchase of the Units involves a high degree of risk including, but not limited to risks relating to including that set forth in the Units, the Company and its operationsConfidential Information Memorandum.
1.3 1.2 The Subscriber represents that the Subscriber is an “Accredited Investoraccredited investor” as such term is defined in Rule 501 of Regulation D (“Regulation D”) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), as indicated by the Subscriber’s responses to the questions contained in Article VI VII hereof, and that the Subscriber is able to bear the economic risk of an investment in the Units.
1.4 1.3 The Subscriber hereby acknowledges and represents that (a) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, unregistered and/or not thinly traded on a national securities exchange, the OTCBB or the Subscriber has employed the services of a “purchaser representative” (as defined in Rule 501 of Regulation D), attorney and/or accountant to read all of the documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units to evaluate the merits and risks of such an investment on the Subscriber’s behalf; (b) the Subscriber recognizes the highly speculative nature of this investment; and (c) the Subscriber is able to bear the economic risk that the Subscriber hereby assumes.
1.5 1.4 The Subscriber hereby acknowledges receipt and careful review of this Agreement, the Memorandum 34 Act Reports (which includes the Risk Factorsas defined herein), including all exhibits theretothereto and the Risk Factors included in our Form 10-K Annual Report filed with the Securities and Exchange, and any documents which may have been made available upon request as reflected therein (collectively referred to as the “Offering Materials”). The Subscriber agrees to the terms of the Warrant ) and the Certificate of Designation attached to the Memorandum as exhibits. The Subscriber hereby represents that the Subscriber has been furnished by the Company during the course of the Offering with all information regarding the Company, the terms and conditions of the Offering and any additional information that the Subscriber has requested or desired to know, and has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the Company and the terms and conditions of the Offering. Capitalized terms Notwithstanding the foregoing, the Subscriber hereby confirms that it has not defined received from the Company nor is it in this Agreement shall have possession of any material nonpublic information relating to the terms ascribed to them in the MemorandumCompany and its operations.
1.6 (a) In making the decision to invest in the Units and the underlying securities, the Subscriber has relied solely upon the information provided by the Company in the Offering Materials. To the extent necessary, the Subscriber has retained, at its own expense, and relied upon appropriate professional advice regarding the investment, tax and legal merits and consequences of this Agreement and the purchase of the Units hereunder. The Subscriber disclaims reliance on any advertisements of the Offering and statements made or information provided by any person or entity in the course of Subscriber’s consideration of an investment in the Units other than the Offering Materials.
1.7 (b) The Subscriber represents that (i) the Subscriber was contacted regarding the sale of the Units by the Company (or an authorized agent or representative thereof) with whom the Subscriber had a prior substantial pre-existing relationship and (ii) no Units were offered or sold to it by means of any form of general solicitation or general advertising, and in connection therewith, the Subscriber did not (A) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio, whether closed circuit, or generally available; or (B) attend any seminar meeting or industry investor conference whose attendees were invited by any general solicitation or general advertising.
1.6 The Subscriber hereby represents that the Subscriber, either by reason of the Subscriber’s business or financial experience or the business or financial experience of the Subscriber’s professional advisors (who are unaffiliated with and not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Subscriber’s own interests in connection with the transaction contemplated hereby.
1.8 1.7 The Subscriber hereby acknowledges that the Offering has not been reviewed by the United States Securities and Exchange Commission (the “SEC”) nor any state regulatory authority since the Offering is intended to be exempt from the registration requirements of Section 5 of the Securities Act, Act pursuant to Regulation D. D promulgated thereunder. The Subscriber understands that the Units Securities have not been registered under the Securities Act or under any state securities or “blue sky” laws and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities Securities unless it is they are registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such registration is available.
1.9 1.8 The Subscriber understands that the Securities comprising the Units are being sold to have not been registered under the Subscriber Securities Act by reason of a claimed exemption under the provisions of the Securities Act that depends, in part, upon the Subscriber’s investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing the Units Securities for the Subscriber’s own account for investment and not with a view toward the resale or distribution to others. The Subscriber, if an entity, further represents that it was not formed for the purpose of purchasing the UnitsSecurities.
1.9 The Subscriber understands that there is a limited public market for the Common Stock issuable upon conversion of the Debentures. The Subscriber understands that even if more significant public market develops for such Securities, Rule 144 (“Rule 144”) promulgated under the Securities Act requires for non-affiliates, among other conditions, a six month holding period prior to the resale (in limited amounts) of securities acquired in a non-public offering without having to satisfy the registration requirements under the Securities Act. The Subscriber understands and hereby acknowledges that the Company is under no obligation to register any of the Securities under the Securities Act or any state securities or “blue sky” laws other than as set forth in Article V.
1.10 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and the underlying securities Securities that such securities Securities have not been registered under the Securities Act or any state securities or “blue sky” laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the restrictions on the transferability of such Units or the underlying securitiesSecurities. The legend to be placed on each certificate shall be in form substantially similar to the following:: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY STATE SECURITIES OR “BLUE SKY LAWS,” AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.”
1.11 The Subscriber understands that the Company will review this Agreement and is hereby given authority by the Subscriber to make such inquiries call Subscriber’s bank or place of employment or otherwise review the financial standing of the Subscriber; and it is further agreed that the Company, at its sole discretion, reserves the unrestricted right, without further documentation or agreement on the part of the Subscriber, to reject or limit any subscription, to accept subscriptions for fractional Units and to close the Offering to the Subscriber at any time and that the Company deems necessary in order will issue stop transfer instructions to verify the accredited investor status of the Subscriber and otherwise verify any other information provided its transfer agent with respect to the Company by the Subscriber. such Securities.
1.12 The Subscriber hereby represents that the address of the Subscriber furnished by Subscriber on the signature page hereof is the Subscriber’s principal residence if Subscriber is an individual or its principal business address if it is a corporation or other entity.
1.12 1.13 The Subscriber represents that the Subscriber has full power and authority (corporate, statutory and otherwise) to execute and deliver this Agreement and to purchase the Units. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
1.13 1.14 If the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Kxxxx Plan, or other tax-exempt entity, it is authorized and qualified to invest in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
1.14 1.15 The Subscriber acknowledges that if he or she is a Registered Representative of an FINRA member firm, he or she must give such firm the notice required by the FINRA’s Rules of Fair Practice, receipt of which must be acknowledged by such firm in Section 6.3 7.3 below.
1.15 1.16 The Subscriber acknowledges that at such time, if ever, as the Securities are registered, sales of the Securities will be subject to state securities laws.
1.17 The Subscriber represents that the Subscriber has read and fully understands the risks associated with the Company and the Units.
(a) The Subscriber agrees not to issue any public statement with respect to the Subscriber’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulation.
1.16 (b) The Company agrees not to disclose the names, addresses or any other information about the Subscribers, except as required by law.
1.19 The Subscriber agrees to hold the Company and its directors, officers, employees, affiliates, controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of (a) any sale or distribution of the Units or the underlying securities Securities by the Subscriber in violation of the Securities Act or any applicable state securities or “blue sky” laws; or (b) any false representation or warranty or any breach or failure by the Subscriber to comply with any covenant made by the Subscriber in this Agreement (including the Confidential Investor Questionnaire contained in Article VI VII herein) or any other document furnished by the Subscriber to any of the foregoing in connection with this transaction.
1.20 The Subscriber represents that neither the Subscriber or any affiliates of the Subscriber has an open short position in the common stock of the Company and the Subscriber agrees that, so long as any of the Securities remain outstanding the Subscriber will not enter into or effect any “short sales” (as such term is defined in Rule 3b-3 of the 1000 Xxx) of the Common Stock, or shares of common stock issuable upon conversion of the Debentures, or hedging transaction which establishes a net short position with respect to the Common Stock or shares of common stock issuable upon conversion of the Debentures.
Appears in 1 contract
Samples: Securities Purchase Agreement (Clean Wind Energy Tower, Inc.)
SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Memorandum dated February [*], 2016 (such memorandum, together with all amendments thereof and exhibits thereto, the “Memorandum”)forth, the Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company such number of shares of 300,000 Units, and the Company agrees to sell the number of Units pursuant to the Subscriber terms and conditions set forth herein, and as is set forth on the signature page hereof, and the Company agrees to sell such Units to the Subscriber at a per share Unit price equal to of $4.00 per Unit 0.50 United States Dollars or a total purchase price of $150,000 United States Dollars (the “Purchase Price”). The Certificates for the Units and warrants will be delivered by the Company to the Subscriber promptly following the receipt of this Agreement and payment in full satisfaction of the Purchase Price is payable by wire transfer of immediately available funds to: [*]Price.
1.2 The Subscriber recognizes that the purchase of the Units involves a high degree of risk including, in that (i) the Company is a development stage company but not limited to risks relating to the Unitsdoes have specific business plans; (ii) following completion of its current financing, the Company will have approximately 66,800,000 shares of common stock issued and its operationsoutstanding; and (iii) the Units are being offered pursuant to an exemption from registration under Regulation S promulgated under the Securities Act of 1933, as amended (the “Act”). It is further acknowledged that the Undersigned: (i) is not relying upon any representations other than those specifically made by officers or representatives of the Company and (ii) has had access to the Company's officers and directors and has reviewed or had access to the Company’s business plan for purposes of obtaining any information requested by the Undersigned.
1.3 The Subscriber represents that the Subscriber is an “Accredited Investor” not a U.S. Person as such term is defined in Rule 501 of under Regulation D (“Regulation D”) S promulgated under the Securities Act, as indicated by the Subscriber’s responses to the questions contained in Article VI hereof.
1.4 The Subscriber hereby acknowledges and represents that (ai) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, listed and unregistered and/or not traded on a national securities exchangesecurities, or that the Subscriber has employed the services of a “purchaser representative” (as defined in Rule 501 of Regulation D)an investment advisor, attorney and/or accountant to read all of the documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units Subscribers to evaluate the merits and risks of such an investment on the Subscriber’s behalf; , (bii) the Subscriber recognizes the highly speculative nature of this investment; an investment in the Units, and (ciii) the Subscriber is able to bear the economic risk that and illiquidity which the Subscriber hereby assumesassumes by investing in the Units.
1.5 The Subscriber hereby acknowledges receipt and careful review of this Agreement, the Memorandum (which includes the Risk Factors), including all exhibits thereto, and any documents which may have been made available upon request as reflected therein (collectively referred to as the “Offering Materials”). The Subscriber agrees to the terms of the Warrant and the Certificate of Designation attached to the Memorandum as exhibits. The Subscriber i) hereby represents that the Subscriber has been furnished by the Company opportunity during the course of the Offering with all information regarding the Company, the terms and conditions of the Offering and any additional information that the Subscriber has requested or desired to know, and has been afforded this transaction the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the Company and the terms and conditions of this transaction and (ii) has been afforded the Offering. Capitalized terms not defined in this Agreement shall have opportunity to request any information which the terms ascribed to Subscriber believes will assist them in the Memorandummaking their investment decision.
1.6 In making the decision to invest in the Units and the underlying securities, the Subscriber has relied solely upon the information provided by the Company in the Offering Materials. (a) To the extent necessary, the Subscriber has retained, at its own expense, and relied upon the advice of appropriate professional advice professionals regarding the investmentpurchase, tax and legal merits and consequences of this Agreement and its acquisition of the purchase Units hereunder. .
(b) The Subscriber disclaims reliance on any advertisements represents that (i) the Subscriber was contacted regarding the Units by a representative of the Offering Company with whom the Subscriber had a prior substantial pre-existing relationship, and statements made (ii) no Units were offered or information provided sold to the Subscriber by means of any form of general solicitation or general advertising and in connection therewith the Subscriber did not (A) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio, whether closed circuit or generally available; or (B) attend any seminar, meeting or industry Subscriber conference whose attendees were invited by any person general solicitation or entity in the course of Subscriber’s consideration of an investment other than the Offering Materialsgeneral advertising.
1.7 The Subscriber hereby represents that the Subscriber, either by reason of the Subscriber’s business or financial experience or the business or financial experience of the Subscriber’s professional advisors (who are unaffiliated with and not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Subscriber’s own interests in connection with the transaction contemplated hereby.
1.8 The Subscriber hereby acknowledges that the Offering has Units have not been reviewed by the United States Securities and Exchange Commission (the “SEC”) nor any state regulatory authority since because of the Offering is Company’s representations that these Units are intended to be exempt from the registration requirements of Section 5 of the Securities Act, Act pursuant to Sections 3(b), 4(2) and/or 4(6) thereof, and Regulation D. S promulgated under the Act. The Subscriber agrees that the Subscriber will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Units, except in compliance with the Act and the rules and regulations promulgated thereunder.
1.8 The Subscriber understands that none of the Units have not been registered under the Securities Act or under any state securities or “blue sky” laws and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities unless it is registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such registration is available.
1.9 The Subscriber understands that the Units are being sold to the Subscriber by reason of a claimed exemption under the provisions of the Securities Act that which depends, in part, upon the Subscriber’s investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing acquiring the Units for the Subscriber’s own account for investment and not with a view toward the resale or distribution thereof to others. The Subscriber, if an entity, further represents that it was not formed for the purpose of purchasing acquiring the Units. The Subscriber understands that Rule 144 promulgated under the Act requires, among other conditions, a six month holding period prior to the resale (in limited amounts) of securities acquired in a non-public offering without having to satisfy the registration requirements under the Act.
1.9 The Subscriber understands and hereby acknowledges that the Company is under no obligation to register the Units under the Act or any state securities or “blue sky” laws other than as set forth in Section 2 hereof. The Subscriber consents that the Company may, if it desires, permit the transfer of the Units out of the Subscriber’s name only when the Subscriber’s request for transfer is accompanied by an opinion of counsel reasonably satisfactory to the Company that neither the sale nor the proposed transfer results in a violation of the Act or any applicable state “blue sky” laws (collectively, “Securities Laws”).
1.10 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and the underlying securities indicating that such securities Units have not been registered under the Act or any state securities or “blue sky” laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. Any and all certificates representing the Securities purchased and any and all securities issued in replacement thereof or in exchange thereof shall bear the following legend or one substantially similar thereto, which the Subscriber has read and understands: “THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR LEGEND OIL AND GAS LTD. RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO COUNSEL FOR LEGEND OIL AND GAS LTD. THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.”
1.11 The Subscriber is aware understands that the Company will make a notation in shall have the right to issue stop transfer instructions on its appropriate records with respect official stock records, and the Subscriber acknowledges that the Company has informed the Subscriber of its intention to the restrictions on the transferability of issue such Units or the underlying securities. The legend to be placed on each certificate shall be in form substantially similar to the following:instructions
1.11 1.12 The Subscriber understands that the Company will review this Agreement and is hereby given authority by the Subscriber to make such inquiries that the Company deems necessary in order to verify reserves the accredited investor status unrestricted right, without further documentation or agreement on the part of the Subscriber Subscriber, to reject or limit any subscription and otherwise verify any other information provided to the Company by the Subscriber. accept subscriptions for Units.
1.13 The Subscriber hereby represents that the address of the Subscriber furnished by the Subscriber on the signature page hereof is the Subscriber’s principal residence residence, if the Subscriber is an individual individual, or its principal business address if it is a corporation or other entity.
1.12 1.14 The Subscriber represents that the Subscriber has full power and authority (corporate, statutory and otherwise) to execute and deliver this Agreement and to purchase acquire the UnitsUnits subscribed for hereby. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
1.13 1.15 If the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, then (a) it is authorized and qualified to invest become an Subscriber in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
1.14 The Subscriber acknowledges that if he or she , and (b) it is a Registered Representative duly organized, validly existing and in good standing under the laws of an FINRA member firm, he or she must give such firm the notice required by the FINRA’s Rules jurisdiction of Fair Practice, receipt of which must be acknowledged by such firm in Section 6.3 below.
1.15 The Subscriber agrees not to issue any public statement with respect to the Subscriber’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulationits organization.
1.16 The Subscriber agrees represents and warrants that it has not engaged, consented to nor authorized any broker, finder or intermediary to act on its behalf, directly or indirectly, as a broker, finder or intermediary in connection with the transaction contemplated by this Agreement. The Subscriber shall indemnify and hold harmless the Company from and its directors, officers, employees, affiliates, controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilitiesfees, costs commissions or other payments owing to any such person or firm acting on behalf of such Subscriber hereunder.
1.17 The Subscriber, whose name appears on the signature line below, shall be the beneficial owner of the Units for which such Subscriber acquires.
1.18 The Subscriber understands, acknowledges and expenses incurred by them agrees with the Company as a result of follows:
(a) The Company may reject any sale or distribution subscription at any time in its sole discretion. The execution of the Units or the underlying securities this Agreement by the Subscriber in violation hereby shall create no obligation on the part of the Securities Act or Company to accept any applicable state securities or “blue sky” laws; or subscription.
(b) any false representation The Subscriber hereby acknowledges and agrees that the subscription hereunder is irrevocable by the Subscriber, and that, except as required by law, the Subscriber is not entitled to cancel, terminate or warranty revoke this Agreement or any breach or failure by agreements of the Subscriber to comply with any covenant made by hereunder and that if the Subscriber in is an individual this Agreement shall survive the death or disability of the Subscriber and shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
(c) No federal or state agency or authority has made any finding or determination as to the accuracy or adequacy of the Offering Documents or as to the fairness of the terms of the Offering Documents nor any recommendation or endorsement of the Units. Any representation to the contrary is a criminal offense. In making an investment decision, the Subscriber must rely on its own examination of the Company, including the Confidential Investor Questionnaire contained in Article VI herein) or any other document furnished by the Subscriber to any of the foregoing in connection with this transactionmerits and risks involved.
Appears in 1 contract
SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Offering Memorandum dated February [*]September 20, 2016 2010 (such memorandum, together with all amendments thereof and supplements and exhibits thereto, the “Memorandum”), the Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company such number of shares of Units, and the Company agrees to sell the number of Units to the Subscriber as is set forth on the signature page hereof, at a per share price equal to $4.00 500 per Unit (the “Purchase Price”)Unit. The Purchase Price purchase price is payable by wire transfer or check payable to “Lender to Lender Franchise, Inc.” contemporaneously with the execution and delivery of immediately available funds tothis Agreement by the Subscriber to the Company, 00000 Xxxxxx Xxxxx Xxxx Xxxx, Xxxxx #0, Xxxxxxxxxxxx, Xxxxxxxx 00000, Attention: [*]Xxxxxxx Xxxxxxxxxx.
1.2 1.1. The Subscriber recognizes that the purchase of the Units involves a high degree of risk including, but not limited to risks relating to, the following: (a) the Company requires funds in addition to the Unitsproceeds of the Offering; (b) an investment in the Company is highly speculative, and only investors who can afford the loss of their entire investment should consider investing in the Company and the Units; (c) the Subscriber may not be able to liquidate its operationsinvestment; (d) transferability of the Common Stock is extremely limited; (e) in the event of a disposition, the Subscriber could sustain the loss of its entire investment; and (f) the Company may issue additional securities in the future which have rights and preferences that are senior to those of the Common Stock. Without limiting the generality of the representations set forth in Section 1.5 below, the Subscriber represents that the Subscriber has carefully reviewed the section of the Memorandum captioned “Risk Factors.”
1.3 1.2. The Subscriber represents (a) that the Subscriber is an “Accredited Investoraccredited investor” as such term is defined in Rule 501 of Regulation D (“Regulation D”) promulgated under the Securities ActAct of 1933, as indicated by amended (the Subscriber’s responses “Securities Act”), and that the Subscriber is able to bear the questions contained economic risk of an investment in Article VI hereof.
1.4 The Subscriber hereby acknowledges and represents the Units and/or (b) that (ai) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, unregistered and/or not traded on a national securities exchange, or the Subscriber has employed the services of a “purchaser representative” (as defined in Rule 501 of Regulation D), attorney and/or accountant to read all of the documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units to evaluate the merits and risks of such an investment on the Subscriber’s behalf; 's behalf and (bii) the Subscriber recognizes the highly speculative nature of this investment; and (c) the .
1.3. The Subscriber is able to bear the economic risk that the Subscriber hereby assumes.
1.5 1.4. The Subscriber hereby acknowledges receipt and careful review of this Agreement, the Memorandum (which includes the Risk Factors), including all exhibits thereto, and any documents which may have been made available upon request as reflected therein (collectively referred to as the “Offering Materials”). The Subscriber agrees to the terms of the Warrant ) and the Certificate of Designation attached to the Memorandum as exhibits. The Subscriber hereby represents that the Subscriber has been furnished by the Company during the course of the Offering with all information regarding the Company, the terms and conditions of the Offering and any additional information that the Subscriber has requested or desired to know, and has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the Company and the terms and conditions of the Offering. Capitalized terms not defined in this Agreement shall have the terms ascribed to them in the Memorandum.
1.6 (a) In making the decision to invest in the Units and the underlying securities, the Subscriber has relied solely upon the information provided by the Company in the Offering Materials. To the extent necessary, the Subscriber has retained, at its own expense, and relied upon appropriate professional advice regarding the investment, tax and legal merits and consequences of this Agreement and the purchase of the Units hereunder. The Subscriber disclaims reliance on any advertisements of the Offering and statements made or information provided by any person or entity in the course of Subscriber’s 's consideration of an investment in the Units other than the Offering Materials.
1.7 (b) The Subscriber represents that (i) the Subscriber was contacted regarding the sale of the Units by the Company (or an authorized agent or representative thereof) and (ii) no Units were offered or sold to it by means of any form of general solicitation or general advertising, and in connection therewith, the Subscriber did not (A) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio, whether closed circuit, or generally available; or (B) attend any seminar meeting or industry investor conference whose attendees were invited by any general solicitation or general advertising.
1.6. The Subscriber hereby represents that the Subscriber, either by reason of the Subscriber’s 's business or financial experience or the business or financial experience of the Subscriber’s 's professional advisors (who are unaffiliated with and not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Subscriber’s 's own interests in connection with the transaction contemplated hereby.
1.8 1.7. The Subscriber hereby acknowledges that the Offering has not been reviewed by the United States U.S. Securities and Exchange Commission (the “SEC”) nor any state regulatory authority since the Offering is intended to be exempt from the registration requirements of Section 5 of the Securities Act, Act pursuant to Regulation D. D promulgated thereunder. The Subscriber understands that the Units have Common Stock has not been registered under the Securities Act or under any state securities or “blue sky” laws and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities Common Stock unless it is they are registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such registration is available.
1.9 1.8. The Subscriber understands that the Units are being sold to Common Stock has not been registered under the Subscriber Securities Act by reason of a claimed exemption under the provisions of the Securities Act that depends, in part, upon the Subscriber’s 's investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing the Units for the Subscriber’s 's own account for investment and not with a view toward the resale or distribution to others. The Subscriber, if an entity, further represents that it was not formed for the purpose of purchasing the Units.
1.10 1.9. The Subscriber understands that there is no trading market for the Common Stock and that an active market may not develop for the Common Stock.
1.10. The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and the underlying securities Common Stock that such securities have not been registered under the Securities Act or any state securities or “blue sky” laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the restrictions on the transferability of such Units or the underlying securities. The legend to be placed on each certificate shall be in form substantially similar to the following:: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED. UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY STATE SECURITIES OR “BLUE SKY LAWS,” AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.”
1.11 1.11. The Subscriber understands that the Company will review this Agreement and is hereby given authority by the Subscriber to make such inquiries call Subscriber's bank or place of employment or otherwise review the financial standing of the Subscriber; and it is further agreed that the Company, in its sole discretion, reserves the unrestricted right, without further documentation or agreement on the part of the Subscriber, to reject or limit any subscription, to accept subscriptions for fractional Units and to close the Offering to the Subscriber at any time and that the Company deems necessary in order will issue stop transfer instructions to verify the accredited investor status of the Subscriber and otherwise verify any other information provided its transfer agent with respect to the Company by the SubscriberCommon Stock.
1.12. The Subscriber hereby represents that the address of the Subscriber furnished by Subscriber on the signature page hereof is the Subscriber’s 's principal residence if Subscriber is an individual or its principal business address if it is a corporation or other entity.
1.12 1.13. The Subscriber represents that the Subscriber has full power and authority (corporate, statutory and otherwise) to execute and deliver this Agreement and to purchase the Units. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
1.13 1.14. If the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, it is authorized and qualified to invest in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
1.14 1.15. The Subscriber acknowledges that at such time, if he or she ever, as the Common Stock is a Registered Representative registered (as such term is defined in Article 5 hereof), sales of an FINRA member firm, he or she must give such firm the notice required by the FINRA’s Rules of Fair Practice, receipt of which must Common Stock will be acknowledged by such firm in Section 6.3 belowsubject to state securities laws.
1.15 1.16. The Subscriber agrees not to issue any public statement with respect to the Subscriber’s 's investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s 's prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulation.
1.16 1.17. The Subscriber understands that the Units are being offered and sold in reliance on specific exemptions from the registration requirements of federal and state securities laws and that the Company and the principals and controlling persons thereof are relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments, and understandings set forth herein in order to determine the applicability of such exemptions and the undersigned's suitability to acquire Units.
1.18. The Subscriber agrees to hold the Company and its directors, officers, employees, affiliates, controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of (a) any sale or distribution of the Units or the underlying securities Common Stock by the Subscriber in violation of the the. Securities Act or any applicable state securities or “blue sky” laws; or (b) any false representation or warranty or any breach or failure by the Subscriber to comply with any covenant made by the Subscriber in this Agreement (including the Confidential Investor Questionnaire contained in Article VI herein) or any other document furnished by the Subscriber to any of the foregoing in connection with this transaction. To the best of the Subscriber’s knowledge, neither the Subscriber nor any person providing funds to the Subscriber: (i) is under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist related activities, any crimes which in the United States would be predicate crimes to money laundering, or any violation of any Anti-Money Laundering Laws (as hereinafter defined); (ii) has been assessed civil or criminal penalties under any Anti-Money Laundering Laws; or (iii) has had any of its funds seized or forfeited in any action under any Anti-Money Laundering Laws. For purposes of this paragraph, the term “Anti-Money Laundering Laws” shall mean laws, regulations and sanctions, state and federal, criminal and civil, that: (i) limit the use of and/or seek the forfeiture of proceeds from illegal transactions; (ii) limit commercial transactions with designated countries or individuals believed to be terrorists, narcotics dealers or otherwise engaged in activities contrary to the interests of the United States; (iii) require identification and documentation of the parties with whom a financial institution conducts business; or (iv) are designed to disrupt the flow of funds to terrorist organizations. Such laws, regulations and sanctions shall be deemed to include the USA Patriot Act of 2001, Pub. L. No. 107-56 (the “Patriot Act”), the Bank Secrecy Act, 31 U.S.C. Section 5311 et. seq. (the “Bank Secrecy Act”), the Trading with the Enemy Act, 50 U.S.C. Appendix, the International Emergency Economic Powers Act, 50 U.S.C. Section 1701 et. seq., and the sanction regulations promulgated pursuant thereto by the OFAC, as well as laws relating to prevention and detection of money laundering in 18 U.S.C. Sections 1956 and 1957.
Appears in 1 contract
Samples: Subscription Agreement (Lender to Lender Franchise, Inc)
SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Memorandum dated February [*], 2016 (such memorandum, together with all amendments thereof and exhibits thereto, the “Memorandum”)forth, the Subscriber hereby irrevocably subscribes purchases for itself and agrees to purchase from the Company such number of shares of UnitsCompany, and the Company agrees to sell to the Subscriber, such number of Units to the Subscriber as is set forth on the signature page hereof, at a per share hereto for an aggregate purchase price equal to $4.00 per Unit (the “Purchase Price”)” as set forth on the signature page hereto. The Purchase Price is payable by wire transfer of immediately available funds to: [*]at the Closing to an account designated by the Company.
1.2 The Subscriber hereby warrants and represents that it recognizes that the purchase of the Units involves a high degree of risk including, but not limited to risks relating to to, the Units, following: (a) an investment in the Company is highly speculative and only investors who can afford the loss of their entire investment should consider investing in the Company and the Units; (b) the Subscriber may not be able to liquidate its operationsinvestment; and (c) transferability of the Common Shares and Warrants forming the Units and the Additional Shares issuable upon due exercise of the Warrants (collectively, the “Securities”) is limited.
1.3 The Subscriber represents that the Subscriber it is (i) an “Accredited Investoraccredited investor” as such term is defined in Rule 501 501(a) of Regulation D (“Regulation D”) promulgated under the Securities Act of 1933, as amended (the “Act”), as indicated by the Subscriber’s responses to the questions contained in Article VI VIII hereof, and by reason of its business and financial experience and the business and financial experience of those persons it may have retained to advise it with respect to its investment in the Securities it, together with such advisors, has such knowledge, sophistication and experience in business and financial matters that it is capable of evaluating the merits and risks of the prospective investment; and (ii) an “accredited investor” as such term is defined in National Instrument 45-106 – Prospectus and Registration Exemptions, of the Canadian Securities Administrators and the Subscriber has completed the Accredited Investor Certificate attached hereto as Schedule “E”.
1.4 The Subscriber hereby acknowledges and represents that that: (a) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, unregistered and/or not traded on a national securities exchangeunregistered, or the Subscriber Subscriber, at its own risk and expense, has employed the services services of a “purchaser representative” (as defined in Rule 501 501(h) of Regulation D), attorney and/or accountant accountant to read all of the documents documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units to evaluate the merits and risks of such an investment investment on the Subscriber’s behalf; (b) the Subscriber recognizes the highly speculative nature of this investment; and (c) the Subscriber is able to bear the economic risk that the Subscriber hereby assumesloss of its entire investment.
1.5 The Subscriber hereby acknowledges receipt and careful review of this Agreement, represents that (i) the Memorandum (which includes Subscriber was contacted regarding the Risk Factors), including all exhibits thereto, and any documents which may have been made available upon request as reflected therein (collectively referred to as the “Offering Materials”). The Subscriber agrees to the terms sale of the Warrant and the Certificate of Designation attached to the Memorandum as exhibits. The Subscriber hereby represents that the Subscriber has been furnished Units by the Company during the course of the Offering with all information regarding the Company, the terms and conditions of the Offering and any additional information that or a Company agent, with whom the Subscriber has requested had a prior substantial pre-existing relationship and (ii) no Units were offered or desired sold to knowit by means of any form of general solicitation or general advertising, and has been afforded in connection therewith, the opportunity to ask questions of and Subscriber did not receive answers from duly authorized officers any general solicitation or general advertising including, but not limited to: (A) any advertisement, article, notice or other representatives of the Company concerning the Company and the terms and conditions of the Offering. Capitalized terms not defined communication published in this Agreement shall have the terms ascribed to them in the Memorandumany newspaper, magazine or similar media or broadcast over television or radio, whether closed circuit, or generally available; or (B) through attendance at any seminar meeting or industry investor conference whose attendees were invited by any general solicitation or general advertising.
1.6 In making the decision to invest in the Units and the underlying securities, the Subscriber has relied solely upon the information provided by the Company in the Offering Materials. To the extent necessary, the Subscriber has retained, at its own expense, and relied upon appropriate professional advice regarding the investment, tax and legal merits and consequences of this Agreement and the purchase hereunder. The Subscriber disclaims reliance on any advertisements of the Offering and statements made or information provided by any person or entity in the course of Subscriber’s consideration of an investment other than the Offering Materials.[Intentionally deleted]
1.7 The Subscriber hereby represents that the Subscriber, either by reason of the Subscriber’s business or financial experience or the business or financial experience of the Subscriber’s professional advisors (who are unaffiliated with and not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Subscriber’s own interests in connection with the transaction contemplated hereby.
1.8 The Subscriber hereby acknowledges that the Offering has not been reviewed by the United States Securities and Exchange Commission (the “SEC”) nor any U.S. state or Canadian provincial securities regulatory authority since (“Securities Regulatory Authority”) as the Offering is intended to be exempt from the registration requirements of Section 5 of the Securities Act, pursuant to Regulation D. D thereunder and from the registration requirements of applicable state “blue sky” securities laws or regulations.
1.8 The Subscriber understands that the Units Securities have not been registered under the Securities Act or under any U.S. state or Canadian provincial securities or “blue sky” laws or regulations by reason of a claimed exemption that depends, in part, upon the Subscriber’s investment intention and agrees agreement not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities Securities unless it is they are registered under the Securities Act and under any applicable state securities or “blue sky” laws or regulations or unless an exemption from such registration is available.
1.9 The , subject to Section 1.11 herein. Without limiting the foregoing, the Company acknowledges and agrees that a Subscriber understands may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Securities to a financial institution that the Units are being sold is an “accredited investor” as defined in Rule 501(a) under Regulation D and who agrees to the Subscriber be bound by reason of a claimed exemption under the provisions of this Agreement and, if required under the terms of such arrangement, such Subscriber may transfer pledged or secured Securities Act that dependsto the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in partconnection therewith. Further, upon no notice shall be required of such pledge. At the Subscriber’s investment intentionexpense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of the Subscriber may reasonably request in connection with a pledge or transfer of the Securities, including, if the Securities are subject to registration pursuant to this Agreement, the preparation and filing of any required prospectus supplement under Rule 424(b)(3) under the Act or other applicable provision of the Act to appropriately amend the list of Selling Stockholders thereunder. In this connectionrespect, the Subscriber hereby represents that the Subscriber is purchasing the Units Securities for the Subscriber’s own account for investment and not with a view toward the resale or distribution to others. The Subscriber, if an entity, further represents that it was not formed for the purpose of purchasing the UnitsSecurities.
1.9 The Subscriber understands that Rule 144 (“Rule 144”) promulgated under the Act requires for non-affiliates, among other conditions, a one (1) year holding period prior to the resale in the United States of securities of an issuer that is not a reporting issuer under the Securities Exchange Act of 1934, as amended, acquired in a non-public offering without having to satisfy the registration requirements under the Act. The Subscriber understands and hereby acknowledges that except as set forth herein the Company is under no obligation to register any of the Securities under the Act or any state securities or “blue sky” laws.
1.10 The Subscriber further understands and agrees that it shall not sell the Securities to a purchaser in any province of Canada at any time within the four (4) month period following the date of their issuance and any subsequent purchaser outside of Canada before the end of that period must agree to comply with this restriction for the remainder of such period. The Subscriber further agrees that if it decides to offer, sell or otherwise transfer, pledge or hypothecate all or any part of the Securities, it will not offer, sell or otherwise transfer, pledge or hypothecate any of such Securities (other than pursuant to an effective registration statement under the Act), directly or indirectly unless an offer and sale or other disposition is:
(i) made in accordance with an effective registration statement under the Act covering such disposition; or
(ii) to the Company; or
(iii) made outside the United States in accordance with the requirements of Rule 904 of Regulation S under the Act; or
(iv) made in a transaction that does not require registration under the Act or any applicable United States state laws, rules and regulations governing the offer and sale of securities, and it has theretofore furnished to the Company an opinion of counsel to that effect; provided, that no opinion shall be required for any sale pursuant to Rule 144, or pursuant to any bona fide pledge in connection with a margin account.
1.11 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and the underlying securities Securities indicating that such securities Securities have not been registered under the Act or any state securities or “blue sky” laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the restrictions on the transferability of such Units or the underlying securitiesSecurities. The legend to be placed on each certificate shall be in form substantially similar to the following:: UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [INSERT DATE THAT IS 4 MONTHS AND A DAY AFTER DISTRIBUTION DATE]. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK EXCHANGE (“TSX”); HOWEVER, THE SAID SECURITIES CANNOT BE TRADED THROUGH THE FACILITIES OF TSX SINCE THEY ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY ANY CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON TSX. THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE ISSUER, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE ACT, OR (C) IN ACCORDANCE WITH AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION AFTER PROVIDING A SATISFACTORY LEGAL OPINION TO THE ISSUER. Provided that if the Securities are being sold pursuant to Section 1.10(iii) above, in the case of a resale to a purchaser in Canada, following the date which is four (4) months and a day after the date of issuance to the Subscriber, the Company covenants and represents that the legend may be removed by providing a declaration to the transfer agent for the Securities of the Company substantially as attached hereto as Schedule “C” (or as the Company may prescribe from time to time) upon the sale of the Securities by the Subscriber.
1.11 1.12 The Subscriber understands that the Company will review this Agreement and is hereby given authority by the Subscriber to make such inquiries call the Subscriber’s bank or place of employment or otherwise review the financial standing of the Subscriber; and it is further agreed that the Company, at its sole discretion, reserves the unrestricted right, without further documentation or agreement on the part of the Subscriber, to reject or limit any purchase, to accept purchases for fractional Units and to close the Offering to the Subscriber at any time and that the Company deems necessary in order will issue stop transfer instructions to verify the accredited investor status of the Subscriber and otherwise verify any other information provided its transfer agent with respect to the Company by the Subscriber. such Securities.
1.13 The Subscriber hereby represents that the address of the Subscriber furnished by Subscriber on the signature signature page hereof is the Subscriber’s principal residence residence if the Subscriber is an individual or its principal business business address if it is a corporation or other entity.
1.12 The entity and that Subscriber is not resident in any province of Canada. If the Subscriber is resident outside of the United States, the Subscriber hereby represents that the Subscriber has full power and authority (corporate, statutory and otherwise) to execute and deliver is resident in the jurisdiction specified in the address set out on the first page of this Agreement (the “International Jurisdiction”) and to purchase the Units. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
1.13 If that: (i) the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Planknowledgeable of, or other tax-exempt entity, it is authorized and qualified to invest in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
1.14 The Subscriber acknowledges that if he or she is a Registered Representative of an FINRA member firmindependently advised as to, he or she must give such firm the notice required by the FINRA’s Rules of Fair Practice, receipt of which must be acknowledged by such firm in Section 6.3 below.
1.15 The Subscriber agrees not to issue any public statement with respect to the Subscriber’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulation.
1.16 The Subscriber agrees to hold the Company and its directors, officers, employees, affiliates, controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of (a) any sale or distribution securities laws of the Units or the underlying securities by the Subscriber in violation of the Securities Act or any applicable state securities or “blue sky” laws; or (b) any false representation or warranty or any breach or failure by the Subscriber International Jurisdiction which would apply to comply with any covenant made by the Subscriber in this Agreement (including the Confidential Investor Questionnaire contained in Article VI herein) or any other document furnished by the Subscriber to any of the foregoing in connection with this transaction.subscription, if there are any;
Appears in 1 contract
SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Memorandum dated February [*], 2016 (such memorandum, together with all amendments thereof and exhibits thereto, the “Memorandum”)forth, the Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company such number of shares of Units, Units or fractions thereof and the Company agrees to sell the number of such Units to the Subscriber as is set forth on upon the signature page hereof, . The Units will be offered at a per share price equal to $4.00 100,000 per Unit (the “Purchase "Initial Offering Price”"). The Purchase Price purchase price is payable by personal or business check, wire transfer of immediately available funds to: [*]or money order made payable to "Fleet Bank N.A., Escrow Agent, F/B/O Zonagen, Inc." contemporaneously with the execution and delivery of this Agreement. The Units will be delivered by the Company within ten (10) days following the consummation of the Offering as set forth in Article III hereof.
1.2 The Subscriber recognizes that the purchase of the Units involves a high degree of risk including, but not in that (i) the Company remains a development stage business with limited to risks relating operating history and requires substantial funds in addition to the Unitsproceeds of the Offering; (ii) an investment in the Company is highly speculative, and only investors who can afford the loss of their entire investment should consider investing in the Company and its operations.
the Units; (iii) the Subscriber may not be able to liquidate his investment; (iv) transferability of the Shares is extremely limited; and (v) in the event of a disposition, the Subscriber could sustain the loss of his entire investment. Such risks are more fully set forth in the Memorandum (as defined below) furnished by the Company to the Subscriber. 1.3 The Subscriber represents that the Subscriber is an “Accredited Investor” "accredited investor" as such term is defined in Rule 501 of Regulation D (“Regulation D”) promulgated under the Securities Act of 1933, as amended (the "Act"), as indicated by the Subscriber’s his responses to the questions contained in Article VI VIII hereof, and that the Subscriber is able to bear the economic risk of an investment in the Units.
1.4 The Subscriber hereby acknowledges and represents that (ai) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, listed and unregistered and/or not traded on a national securities exchangesecurities, or the Subscriber has employed the services of a “purchaser representative” (as defined in Rule 501 of Regulation D)an investment advisor, attorney and/or accountant to read all of the documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units and to evaluate the merits and risks of such an investment on the Subscriber’s 's behalf; (bii) the Subscriber recognizes the highly speculative nature of this investment; and (ciii) the Subscriber is able to bear the economic risk that which the Subscriber hereby assumes.
1.5 The Subscriber hereby acknowledges receipt and careful review of this Agreementthe Confidential Private Placement Memorandum dated July 23, 1996, as supplemented and amended (including Supplement and Amendment No. 1 to the Confidential Offering Memorandum (which includes the Risk Factors)dated July 23, including all exhibits thereto1996, and any documents which may have been made available upon request as reflected therein (collectively hereinafter referred to as the “Offering Materials”"Supplement"). The Subscriber agrees to , and the terms of the Warrant attachments and exhibits thereto (including the Certificate of Designation attached to Designations of the Memorandum as exhibits. The Subscriber Series B Convertible Preferred Stock, the Company's Annual Report on Form 10-K for the year ended December 31, 1995, Quarterly Report on Form 10-Q for the quarter ended March 31, 1996 and Definitive Proxy Statement for its June 19, 1996 Annual Meeting of Stockholders, all of which constitute an integral part of the Memorandum) (the "Memorandum") and hereby represents that the Subscriber has been furnished by the Company during the course of the Offering this transaction with all information regarding the Company, the terms and conditions of the Offering and any additional information that Company which the Subscriber has requested or desired to know, and has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the Company and the terms and conditions of the OfferingOffering and has received any additional information which the Subscriber has requested. Capitalized terms not defined in this Agreement shall have the terms ascribed to them in the Memorandum.1.6
1.6 In making the decision to invest in the Units and the underlying securities, the (a) The Subscriber has relied solely upon the information provided by the Company in the Offering MaterialsMemorandum in making the decision to invest in the Units. To the extent necessary, the Subscriber has retained, at its own expensethe expense of the Subscriber, and relied upon appropriate professional advice upon
(b) To the best of its knowledge, (i) the Subscriber was contacted regarding the investment, tax and legal merits and consequences of this Agreement and the purchase hereunder. The Subscriber disclaims reliance on any advertisements sale of the Offering Units by the Placement Agent (or an authorized agent or representative thereof), with whom the Subscriber had a prior substantial pre-existing relationship and statements made (ii) no Units were offered or information provided sold to it by means of any form of general solicitation or general advertising, and in connection therewith the Subscriber: did not (A) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio whether closed circuit, or generally available; or (B) attend any seminar meeting or industry investor conference whose attendees were invited by any person general solicitation or entity in the course of Subscriber’s consideration of an investment other than the Offering Materialsgeneral advertising.
1.7 The Subscriber hereby represents that the Subscriber, Subscriber either by reason of the Subscriber’s 's business or financial experience or the business or financial experience of the Subscriber’s 's professional advisors (who are unaffiliated with and who are not compensated by the Company or any affiliate or selling agent of the Company, including the Placement Agent, directly or indirectly), ) has the capacity to protect the Subscriber’s 's own interests in connection with the transaction contemplated hereby.
1.8 . The Subscriber hereby acknowledges that the Offering has not been reviewed by the United States Securities and Exchange Commission (the “"SEC”") nor any state regulatory authority since because of the Company's representations that the Offering is intended to be exempt from the registration requirements of Section 5 of the Securities Act, Act pursuant to Section 4(2) of the Act and Regulation D. D promulgated thereunder. The Subscriber understands agrees that the Units have Subscriber will not been sell or otherwise transfer the Shares unless they are registered under the Securities Act or under any state securities or “blue sky” laws and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities unless it is registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such registration is available.
1.9 1.8 The Subscriber understands that the Shares comprising the Units are being sold to have not been registered under the Subscriber Act by reason of a claimed exemption under the provisions of the Securities Act that which depends, in part, upon the Subscriber’s 's investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing the Shares comprising the Units for the Subscriber’s 's own account for investment and not with a view toward the resale or distribution of such shares to others. The Subscriber, if an entity, further represents that it was not formed for the purpose of purchasing the UnitsShares.
1.9 The Subscriber understands that although there currently is a public market for the Common Stock, Rule 144 promulgated under the Act requires, among other conditions, a two-year holding period prior to the resale (in limited amounts) of securities
1.10 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and the underlying securities Shares that such securities Shares have not been registered under the Act or any state securities or "blue sky" laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the restrictions on the transferability of such Units or the underlying securities. The legend to be placed on each certificate shall be in form substantially similar to the following:Shares.
1.11 The Subscriber understands that the Company will review this Agreement and is hereby given authority by the Subscriber to make such inquiries call Subscriber's bank or place of employment or otherwise review the financial standing of the Subscriber; and it is further agreed that the Company deems necessary in order reserves the unrestricted right to verify reject or limit any subscription, to accept subscriptions for fractional Units and to close the accredited investor status of Offering to the Subscriber and otherwise verify at any other information provided to the Company by the Subscriber. time.
1.12 The Subscriber hereby represents that the address of the Subscriber furnished by the Subscriber on the signature page hereof is the Subscriber’s 's principal residence if the Subscriber is an individual or its principal business address if it is a corporation or other entity.
1.12 1.13 The Subscriber represents that the Subscriber he or it has full power and authority (corporate, statutory and otherwise) to execute and deliver this Agreement and to purchase the Units. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
1.13 1.14 If the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, it is authorized and qualified to invest become an investor in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
1.14 1.15 The Subscriber acknowledges that if he or she is a Registered Representative of an FINRA NASD member firm, he or she must give such firm the notice required by the FINRA’s NASD's Rules of Fair Practice, receipt of which must be acknowledged by such firm in Section 6.3 8.4 below.
1.15 The Subscriber agrees not to issue any public statement with respect to the Subscriber’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulation.
1.16 The Subscriber agrees to hold acknowledges that at such time, if ever, as the Company and its directorsShares are registered, officers, employees, affiliates, controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of (a) any sale or distribution sales of the Units or the underlying Shares will be subject to state securities by the Subscriber in violation laws, including those of the Securities Act State of New Jersey which requires any securities sold in New Jersey to be sold through a registered broker-dealer or any applicable state securities or “blue sky” laws; or (b) any false representation or warranty or any breach or failure by the Subscriber to comply with any covenant made by the Subscriber in this Agreement (including the Confidential Investor Questionnaire contained in Article VI herein) or any other document furnished by the Subscriber to any of the foregoing in connection with this transaction.reliance upon an exemption from registration. II
Appears in 1 contract
Samples: Subscription Agreement (Zonagen Inc)
SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Memorandum dated February [*], 2016 (such memorandum, together with all amendments thereof and exhibits thereto, the “Memorandum”)forth, the Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company such number of shares of Units, ___ Units for a price equal to $1.00 per Unit and the Company agrees to sell the number of such Units to the Subscriber as is set forth on the signature page hereof, at a per share price equal to $4.00 per Unit (the “Purchase Price”)for said purchase price. The Purchase Price purchase price is payable by certified or bank check or wire transfer payable to the Company, contemporaneously with the execution and delivery of immediately available funds to: [*]this Subscription Agreement.
1.2 The Subscriber recognizes that the purchase of the Units involves a high degree of risk including, but not limited to risks relating in that (i) the Company has had substantial losses in recent periods and requires substantial funds in addition to the Units, proceeds of this private placement; (ii) an investment in the Company is highly speculative and its operationsonly investors who can afford the loss of their entire investment should consider investing in the Company; (iii) the Subscriber may not be able to liquidate this investment; (iv) transferability of the Units is extremely limited; and (v) in the event of a disposition, a Subscriber could sustain the loss of the Subscriber's entire investment.
1.3 The Subscriber represents that the Subscriber is an “Accredited Investor” "accredited investor" as such term is in defined in Rule 501 of Regulation D (“Regulation D”) promulgated under the United States Securities ActAct of 1933, as indicated amended (the "Act") qualifying as such on the basis set forth in the executed Investor Questionnaire provided by the Subscriber’s responses Subscriber to the questions contained Company concurrently herewith and that the Subscriber is able to bear the economic risk of an investment in Article VI hereofthe Units.
1.4 The Subscriber hereby acknowledges and represents that (a) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, unregistered and/or not traded on a national listed and non-registered securities exchange, or the Subscriber has employed the services of a “purchaser representative” (as defined in Rule 501 of Regulation D), attorney and/or accountant to read all of the documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units to evaluate the merits and risks of such an investment on the Subscriber’s 's behalf; (b) , and that the Subscriber recognizes the highly speculative nature of this investment; . The Subscriber or the Subscriber's purchaser representative has such knowledge and (c) experience in finance, securities, investments and other business matters so as to be able to protect the interests of the Subscriber in connection with this transaction, and the Subscriber's investment in the Company hereunder is able not material when compared to the Subscriber's total financial capacity. The Subscriber understands the various risks of an investment in the Company as proposed herein and can afford to bear such risks, including, without limitation, the economic risk that risks of losing the Subscriber hereby assumesentire investment.
1.5 The Subscriber hereby acknowledges receipt and careful review of this Agreement, the Memorandum (which includes the Risk Factors), including all exhibits thereto, and any documents which may have been made available upon request as reflected therein (collectively referred to as the “Offering Materials”). The Subscriber agrees to the terms of the Warrant and the Certificate of Designation attached to the Memorandum as exhibits. The Subscriber hereby represents that the Subscriber has been furnished by the Company during the course of the Offering this transaction with all information regarding the Company, the terms and conditions of the Offering and any additional information that Company which the Subscriber has had requested or desired to know; that all documents which could be reasonably provided have been made available for the Subscriber's inspection and review; and that such information and documents have, and in the Subscriber's opinion, afforded the Subscriber with all of the same information that would be provided the Subscriber in a registration statement filed under the Act; that the Subscriber has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the Company and the terms and conditions of the Offering. Capitalized terms not defined in this Agreement shall have offering, and any additional information which the terms ascribed to them in the MemorandumSubscriber had requested.
1.6 In making the decision to invest in the Units and the underlying securities, the Subscriber has relied solely upon the information provided by the Company in the Offering Materials. To the extent necessary, the Subscriber has retained, at its own expense, and relied upon appropriate professional advice regarding the investment, tax and legal merits and consequences of this Agreement and the purchase hereunder. The Subscriber disclaims reliance on any advertisements of the Offering and statements made or information provided by any person or entity in the course of Subscriber’s consideration of an investment other than the Offering Materials.
1.7 The Subscriber hereby represents that the Subscriber, either by reason of the Subscriber’s business or financial experience or the business or financial experience of the Subscriber’s professional advisors (who are unaffiliated with and not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Subscriber’s own interests in connection with the transaction contemplated hereby.
1.8 The Subscriber hereby acknowledges that the Offering this offering of Units has not been reviewed by the United States Securities and Exchange Commission ("SEC") because of the “SEC”) nor any state regulatory authority since the Offering Company's representations that this is intended to be exempt from the registration requirements of Section 5 a nonpublic offering pursuant to Sections 4(2) or 3(b) of the Securities Act. The Subscriber represents that the Units are being purchased for his own account, pursuant for investment and not for distribution or resale to Regulation D. others. The Subscriber agrees that he will not sell or otherwise transfer such securities unless they are registered under the Act or unless an exemption from such registration is available.
1.7 The Subscriber understands that the Units have not been registered under the Securities Act or under any state securities or “blue sky” laws and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities unless it is registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such registration is available.
1.9 The Subscriber understands that the Units are being sold to the Subscriber by reason of a claimed exemption under the provisions of the Securities Act that which depends, in part, upon the Subscriber’s his investment intentionintention and other representations and warranties set forth herein. In this connection, the Subscriber hereby represents understands that it is the position of the SEC that the Subscriber is purchasing the Units statutory basis for the Subscriber’s own account for investment and such exemption would not with a view toward the resale or distribution be present if his representation merely meant that his present intention was to others. The Subscriber, if an entity, further represents that it was not formed for the purpose of purchasing the Units.
1.10 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and the underlying securities that hold such securities have not been registered and setting forth for a short period, such as the capital gains period of tax statutes, for a deferred sale, for a market rise, assuming that a market develops, or referring to the restrictions on transferability and sale thereof contained in this Agreementfor any other fixed period. The Subscriber is aware that realizes that, in the Company will make view of the SEC, a notation in its appropriate records purchase now with respect an intent to resell would represent a purchase with an intent inconsistent with his representation to the restrictions on Company, and the transferability of SEC might regard such Units a sale or the underlying securities. The legend disposition as a deferred sale to be placed on each certificate shall be in form substantially similar to the following:which such exemptions are not available.
1.11 1.8 The Subscriber understands that there is no public market for the Company will review this Agreement Units. The Subscriber understands that even if a public market develops for the Common Stock, Rule 144 (the "Rule") promulgated under the Act requires, among other conditions, a one year holding period prior to the resale (in limited amounts) of securities acquired in a non-public offering without having to satisfy the registration requirements under the Act. The Subscriber understands and is hereby given authority by the Subscriber to make such inquiries acknowledges that the Company deems necessary is under no obligation to register the securities comprising the Units under the Act, except as provided in order to verify Paragraph 4 hereof. The Subscriber consents that the accredited investor status Company may, if it desires, permit the transfer of the Subscriber and otherwise verify any other information provided securities comprising the Units out of his name only when his request for transfer is accompanied by an opinion of counsel reasonably satisfactory to the Company by that neither the Subscriber. The Subscriber hereby represents that sale nor the address proposed transfer results in a violation of the Subscriber furnished by Subscriber on the signature page hereof is the Subscriber’s principal residence if Subscriber is an individual Act or its principal business address if it is a corporation or other entity.
1.12 The Subscriber represents that the Subscriber has full power and authority (corporate, statutory and otherwise) to execute and deliver this Agreement and to purchase the Units. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
1.13 If the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, it is authorized and qualified to invest in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
1.14 The Subscriber acknowledges that if he or she is a Registered Representative of an FINRA member firm, he or she must give such firm the notice required by the FINRA’s Rules of Fair Practice, receipt of which must be acknowledged by such firm in Section 6.3 below.
1.15 The Subscriber agrees not to issue any public statement with respect to the Subscriber’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulation.
1.16 state "blue sky" laws (collectively "Securities Laws"). The Subscriber agrees to hold the Company and its directors, officers, employees, affiliates, officers and controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of (a) any misrepresentation made by him contained herein or any sale or distribution of the Units or the underlying securities by the undersigned Subscriber in violation of any Securities Laws.
1.9 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units stating that they have not been registered under the Act and setting forth or referring to the restrictions on transferability and sale thereof and a lockup that the Securities Act may not be sold without the prior written consent of D.L. Cromwell Investments for a period of one year.
1.10 The Subsxxxxxx xxxxxx represents that the address of Subscriber furnished by him at the end of this Subscription Agreement is the undersigned's principal residence if he is an individual or its principal business address if it is a corporation or other entity.
1.11 The Subscriber hereby represents that no representations or warranties have been made to the Subscriber by the Company or any applicable state securities agent, employee or “blue sky” lawsaffiliate of the Company and in entering into this transaction, the Subscriber is not relying on any information, other than that contained in this Agreement and the results of independent investigation by the Subscriber. In furtherance of the foregoing and not by way of limitation, it never has been represented, guaranteed or warranted by any broker, the Company, D.L. Cromwell Investments, Inc., Fin-Atlantic Securities, any of xxxxx xxxxxxrs, directors, stockholders, partners, employees or agents, or any other persons, whether expressly or by implication, that: (i) the Company or the Subscriber will realize any given percentage of profits and/or amount or type of consideration, profit or loss as a result of the Company's activities or the Subscriber's investment in the Company; or (bii) the past performance or experience of the management of the Company, or of any false representation other person, will in any way indicate the predictable results of the ownership of the securities or warranty of the Company's activities.
1.12 If a natural person, the Subscriber is a bona fide resident of the State contained in the address set forth on the signature page of this Agreement as the undersigned's home address; at least 21 years of age; and legally competent to execute this Subscription Agreement. If an entity, the undersigned is duly authorized to execute this Agreement and this Agreement constitutes the legal, valid and binding obligation of the undersigned enforceable against the undersigned in accordance with its terms.
1.13 The undersigned will acquire the Securities for the undersigned's own account (or for the joint account of the undersigned and the undersigned's spouse either in joint tenancy, tenancy by the entirety or tenancy in common) for investment and not with a view to the sale or distribution thereof or the granting of any participation therein, and has no present intention of distributing or selling to others any of such interest or granting any participation therein.
1.14 No oral or written representations have been made other than as stated in this Agreement, and no oral or written information furnished to the Subscriber or the Subscriber's advisor(s) in connection with this offering were in any way inconsistent with the information stated herein.
1.15 The Subscriber is not subscribing for Units as a result of or subsequent to any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any breach solicitation of a subscription by a person other than a representative of D.L. Cromwell Investments, Inc., Fin-Atlantic Securities or failure by xxx Xxxxxxx with which the undersigned had a pre-existing relationship in connection with investments in securities generally.
1.16 The Subscriber is not relying on the Company with respect to the tax and other economic considerations of an investment.
1.17 The Subscriber has received and carefully read copies of the Company's Annual Report on Form 10-KSB for the period ended December 31, 1997 and the Quarterly Report on Form 10-QSB for the period ended September 30, 1998. The Subscriber has had the opportunity to ask questions about the contents of such reports and is satisfied as to the responses of the Company.
1.18 Without limiting any of the Subscriber's other representations and warranties hereunder, the Subscriber acknowledges that the undersigned has reviewed and is aware of the risk factors described in the Company's annual report on Form 10-KSB for the fiscal year ended December 31, 1997 and the Company's other periodic reports filed with the SEC from time to comply with any covenant time.
1.19 The Subscriber acknowledges that the representations, warranties and agreements made by the Subscriber in herein shall survive the execution and delivery of this Agreement (including and the Confidential Investor Questionnaire contained in Article VI herein) or any other document furnished by the Subscriber to any purchase of the foregoing Units.
1.20 The Subscriber has consulted his own financial, legal and tax advisors with respect to the economic, legal and tax consequences of an investment in connection with this transactionthe Units and has not relied on the Company, its officers, directors or professional advisors for advice as to such consequences.
Appears in 1 contract
SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Offering Memorandum dated February [*]24, 2016 2011 (such memorandum, together with all amendments thereof and supplements and exhibits thereto, the “Memorandum”), the Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company such number of shares of Units, and the Company agrees to sell the number of Units to the Subscriber as is set forth on the signature page hereof, at a per share price equal to $4.00 12,500 per Unit (the “Purchase Price”)Unit. The Purchase Price purchase price is payable by wire transfer pursuant to the instructions attached hereto contemporaneously with the execution and delivery of immediately available funds tothis Agreement by the Subscriber to MMAX Media, Inc., 000 X.X. 00xx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, Attention: [*]Xxxxxx Xxxxxxxx. Deliveries may be made by mail, overnight courier service, or as an attachment to an email sent to xxx@xxxxxx.xxxxxx.
1.2 1.1 The Subscriber recognizes that the purchase of the Units involves a high degree of risk including, but not limited to risks relating to, the following: (a) the Company requires funds in addition to the Unitsproceeds of this Offering; (b) an investment in the Company is highly speculative, and only investors who can afford the loss of their entire investment should consider investing in the Company and the Units; (c) the Subscriber may not be able to liquidate its operationsinvestment; (d) limited transferability of the Common Stock; (e) in the event of a disposition, the Subscriber could sustain the loss of its entire investment; and (f) the Company may issue additional securities in the future which have rights and preferences that are senior to those of the Common Stock. Without limiting the generality of the representations set forth in Section 1.5 below, the Subscriber represents that the Subscriber has carefully reviewed the section of the Memorandum captioned “Risk Factors” and the Risk Factors contained in the Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2010.
1.3 1.2 The Subscriber represents that the Subscriber is an “Accredited Investoraccredited investor” as such term is defined in Rule 501 (as amended on July 21, 2010 by the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) of Regulation D (“Regulation D”) promulgated under the Securities ActAct of 1933, as indicated amended (the “ Act”), and that the Subscriber is able to bear the economic risk of an investment in the Units and that the information in the Investor Questionnaire completed and executed by the Subscriber’s responses to the questions contained undersigned is true and accurate in Article VI hereofall respects.
1.4 1.3 The Subscriber hereby acknowledges and represents that (a) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, unregistered and/or not traded on a national securities exchange, or the Subscriber has employed the services of a “purchaser representative” (as defined in Rule 501 of Regulation D), attorney and/or accountant to read all of the documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units to evaluate the merits and risks of such an investment on the Subscriber’s 's behalf; (b) the Subscriber recognizes the highly speculative nature of this investment; and (c) the Subscriber is able to bear the economic risk that the Subscriber hereby assumes.
1.5 1.4 The Subscriber hereby acknowledges receipt and careful review of this Agreement, the Memorandum (which includes the Risk Factors), including all exhibits thereto, that certain Escrow Agreement dated February 24, 2011 (the “Escrow Agreement”), SEC filings (defined below) and any documents which may have been made available upon request as reflected therein (collectively referred to as the “Offering Materials”). The Subscriber agrees to the terms of the Warrant ) and the Certificate of Designation attached to the Memorandum as exhibits. The Subscriber hereby represents that the Subscriber has been furnished by the Company during the course of the this Offering with all information regarding the Company, the terms and conditions of the this Offering and any additional information that the Subscriber has requested or desired to know, and has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the Company and the terms and conditions of the this Offering. Capitalized terms not defined in this Agreement shall have the terms ascribed to them in the Memorandum.
1.6 (a) In making the decision to invest in the Units and the underlying securities, the Subscriber has relied solely upon the information provided by the Company in the Offering Materialsthis Memorandum. To the extent necessary, the Subscriber has retained, at its own expense, and relied upon appropriate professional advice regarding the investment, tax and legal merits and consequences of this Agreement and the purchase of the Units hereunder. The Subscriber disclaims reliance on any advertisements of the Offering and statements made or information provided by any person or entity in the course of Subscriber’s 's consideration of an investment in the Units other than the Offering Materialsthis Memorandum.
1.7 (b) The Subscriber represents that (i) the Subscriber was contacted regarding the sale of the Units by the Company (or an authorized agent or representative thereof) and (ii) no Units were offered or sold to it by means of any form of general solicitation or general advertising, and in connection therewith, the Subscriber did not (A) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio, whether closed circuit, or generally available; or (B) attend any seminar meeting or industry investor conference whose attendees were invited by any general solicitation or general advertising.
1.6 The Subscriber hereby represents that the Subscriber, either by reason of the Subscriber’s 's business or financial experience or the business or financial experience of the Subscriber’s 's professional advisors (who are unaffiliated with and not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Subscriber’s 's own interests in connection with the transaction contemplated hereby.
1.8 1.7 The Subscriber hereby acknowledges that the this Offering has not been reviewed by the United States U.S. Securities and Exchange Commission (the “SEC”) nor any state regulatory authority since the this Offering is intended to be exempt from the registration requirements of Section 5 of the Securities Act, Act pursuant to Regulation D. D promulgated thereunder. The Subscriber understands that the shares of Common Stock comprising the Units have not been registered under the Securities Act or under any state securities or “blue sky” laws and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities Common Stock unless it is they are registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such registration is available.
1.9 1.8 The Subscriber understands that the Units are being sold to have not been registered under the Subscriber Act by reason of a claimed exemption under the provisions of the Securities Act that depends, in part, upon the Subscriber’s 's investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing the Units for the Subscriber’s 's own account for investment and not with a view toward the resale or distribution to others. The Subscriber, if an entity, further represents that it was not formed for the purpose of purchasing the Units.
1.9 The Subscriber understands that the current trading market for the Company’s Common Stock is limited and that an active market may not develop for the Common Stock.
1.10 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and the underlying securities Common Stock that such securities have not been registered under the Act or any state securities or “blue sky” laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the restrictions on the transferability of such Units or the underlying securities. The legend to be placed on each certificate shall be in form substantially similar to the following:: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED. UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY STATE SECURITIES OR “BLUE SKY LAWS,” AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.”
1.11 The Subscriber understands that the Company will review this Agreement and is hereby given authority by the Subscriber to make such inquiries call Subscriber's bank or place of employment or otherwise review the financial standing of the Subscriber; and it is further agreed that the Company, in its sole discretion, reserves the unrestricted right, without further documentation or agreement on the part of the Subscriber, to reject or limit any subscription, to accept subscriptions for fractional Units and to close this Offering to the Subscriber at any time and that the Company deems necessary in order will issue stop transfer instructions to verify the accredited investor status of the Subscriber and otherwise verify any other information provided its transfer agent with respect to the Company by the Subscriber. Common Stock.
1.12 The Subscriber hereby represents that the address of the Subscriber furnished by Subscriber on the signature page hereof is the Subscriber’s 's principal residence if Subscriber is an individual or its principal business address if it is a corporation or other entity.
1.12 1.13 The Subscriber represents that the Subscriber has full power and authority (corporate, statutory and otherwise) to execute and deliver this Agreement and to purchase the Units. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
1.13 1.14 If the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, it is authorized and qualified to invest in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
1.14 1.15 The Subscriber acknowledges that at such time, if he or she ever, as the Common Stock are registered (as such term is a Registered Representative defined in Article 5 hereof), sales of an FINRA member firm, he or she must give such firm the notice required by the FINRA’s Rules of Fair Practice, receipt of which must Common Stock will be acknowledged by such firm in Section 6.3 belowsubject to state securities laws.
1.15 1.16 The Subscriber agrees not to issue any public statement with respect to the Subscriber’s 's investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s 's prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulation.
1.16 The Subscriber agrees to hold the Company and its directors, officers, employees, affiliates, controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of (a) any sale or distribution of the Units or the underlying securities by the Subscriber in violation of the Securities Act or any applicable state securities or “blue sky” laws; or (b) any false representation or warranty or any breach or failure by the Subscriber to comply with any covenant made by the Subscriber in this Agreement (including the Confidential Investor Questionnaire contained in Article VI herein) or any other document furnished by the Subscriber to any of the foregoing in connection with this transaction.
Appears in 1 contract
SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER. 1.1 Subject to the terms and conditions hereinafter set forth and in the Confidential Private Placement Memorandum dated February [*], 2016 (such memorandum, together with all amendments thereof and exhibits thereto, the “Memorandum”)forth, the Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company such number of shares of Units, and the Company agrees to sell the number of Units to the Subscriber as is set forth on the signature page hereof, at a per share price equal to $4.00 0.04 per Unit (the “Purchase Price”). The Purchase Price is payable by wire transfer of immediately available funds to: [*]Bank of America 000 Xxxxxxx Xxxx Xxx Xxxxxxxx, XX 00000 Tel 000.000.0000 Account name: KonaRed Corporation Account #: 325015164739 ABA#: 000000000 Investor Name: ________________________
1.2 The Subscriber recognizes that the purchase of the Units involves a high degree of risk including, but not limited to risks relating to the Units, the Company and its operations.
1.3 The Subscriber represents that the Subscriber is an “Accredited Investor” as such term is defined in Rule 501 of Regulation D (“Regulation D”) promulgated under the Securities Act, as indicated by the Subscriber’s responses to the questions contained in Article VI V hereof.
1.4 The Subscriber hereby acknowledges and represents that (a) the Subscriber has knowledge and experience in business and financial matters, prior investment experience, including investment in securities that are non-listed, unregistered and/or not traded on a national securities exchange, or the Subscriber has employed the services of a “purchaser representative” (as defined in Rule 501 of Regulation D), attorney and/or accountant to read all of the documents furnished or made available by the Company both to the Subscriber and to all other prospective investors in the Units to evaluate the merits and risks of such an investment on the Subscriber’s behalf; (b) the Subscriber recognizes the highly speculative nature of this investment; and (c) the Subscriber is able to bear the economic risk that the Subscriber hereby assumes.
1.5 The Subscriber hereby acknowledges receipt and careful review of this Agreement, the Memorandum (which includes the Risk Factors), including all exhibits thereto, Agreement and any documents which may have been made available upon request as reflected therein (collectively referred to as the “Offering Materials”). The Subscriber agrees to the terms of the Warrant and the Certificate of Designation attached to the Memorandum as exhibitsWarrant. The Subscriber hereby represents that the Subscriber has been furnished by the Company during the course of the Offering with all information regarding the Company, the terms and conditions of the Offering and any additional information that the Subscriber has requested or desired to know, and has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the Company and the terms and conditions of the Offering. Capitalized terms not defined in this Agreement shall have the terms ascribed to them in the Memorandum.
1.6 In making the decision to invest in the Units and the underlying securities, the Subscriber has relied solely upon the information provided by the Company in the Offering Materials. To the extent necessary, the Subscriber has retained, at its own expense, and relied upon appropriate professional advice regarding the investment, tax and legal merits and consequences of this Agreement and the purchase hereunder. The Subscriber disclaims reliance on any advertisements of the Offering and statements made or information provided by any person or entity in the course of Subscriber’s consideration of an investment other than the Offering Materials.
1.7 The Subscriber hereby represents that the Subscriber, either by reason of the Subscriber’s business or financial experience or the business or financial experience of the Subscriber’s professional advisors (who are unaffiliated with and not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Subscriber’s own interests in connection with the transaction contemplated hereby.
1.8 The Subscriber hereby acknowledges that the Offering has not been reviewed by the United States Securities and Exchange Commission (the “SEC”) nor any state regulatory authority since the Offering is intended to be exempt from the registration requirements of Section 5 of the Securities Act, pursuant to Regulation D. The Subscriber understands that the Units have not been registered under the Securities Act or under any state securities or “blue sky” laws and agrees not to sell, pledge, assign or otherwise transfer or dispose of the Units or any of the underlying securities unless it is registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such registration is available.
1.9 The Subscriber understands that the Units are being sold to the Subscriber by reason of a claimed exemption under the provisions of the Securities Act that depends, in part, upon the Subscriber’s investment intention. In this connection, the Subscriber hereby represents that the Subscriber is purchasing the Units for the Subscriber’s own account for investment and not with a view toward the resale or distribution to others. The Subscriber, if an entity, further represents that it was not formed for the purpose of purchasing the Units.
1.10 The Subscriber consents to the placement of a legend on any certificate or other document evidencing the Units and the underlying securities that such securities have not been registered and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. The Subscriber is aware that the Company will make a notation in its appropriate records with respect to the restrictions on the transferability of such Units or the underlying securities. The legend to be placed on each certificate shall be in form substantially similar to the following:
1.11 The Subscriber understands that the Company will review this Agreement and is hereby given authority by the Subscriber to make such inquiries that the Company deems necessary in order to verify the accredited investor status of the Subscriber and otherwise verify any other information provided to the Company by the Subscriber. The Subscriber hereby represents that the address of the Subscriber furnished by Subscriber on the signature page hereof is the Subscriber’s principal residence if Subscriber is an individual or its principal business address if it is a corporation or other entity.
1.12 The Subscriber represents that the Subscriber has full power and authority (corporate, statutory and otherwise) to execute and deliver this Agreement and to purchase the Units. This Agreement constitutes the legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
1.13 If the Subscriber is a corporation, partnership, limited liability company, trust, employee benefit plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, it is authorized and qualified to invest in the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so.
1.14 The Subscriber acknowledges that if he or she is a Registered Representative of an FINRA member firm, he or she must give such firm the notice required by the FINRA’s Rules of Fair Practice, receipt of which must be acknowledged by such firm in Section 6.3 5.3 below.
1.15 The Subscriber agrees not to issue any public statement with respect to the Subscriber’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulation.
1.16 The Subscriber agrees to hold the Company and its directors, officers, employees, affiliates, controlling persons and agents and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of (a) any sale or distribution of the Units or the underlying securities by the Subscriber in violation of the Securities Act or any applicable state securities or “blue sky” laws; or (b) any false representation or warranty or any breach or failure by the Subscriber to comply with any covenant made by the Subscriber in this Agreement (including the Confidential Investor Questionnaire contained in Article VI V herein) or any other document furnished by the Subscriber to any of the foregoing in connection with this transaction.
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