Terms of the Offering. (a) The Company has prepared and delivered to the Placement Agent copies of a Confidential Private Placement Memorandum dated as of October 22, 2007 (as may be amended from time to time, and including the exhibits thereto, the “Memorandum”), relating to, among other things, the business of the Company, its financial condition, the Securities and the terms of Offering. (b) Pursuant to the Offering as further described in the Memorandum the Offering shall consists of Units with an aggregate purchase price of up to $5,000,000, exclusive of the over-allotment option for up to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) shall be $50,000. The Warrants will have a term of five (5) years from the Initial Closing as determined in Section 3(a) below and will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled to such “registration rights”, anti-dilution protection, and other rights as are described in the Offering Documents (as defined below). (c) The Offering shall commence on the date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.” (d) Each Prospective Investor who desires to purchase Securities shall deliver to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire , and such other agreements as are required to be signed in connection with the Offering (together with the Memorandum, Subscription Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for Securities. (e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription. (f) Subject to the approval of the Company and the conditions set forth herein, which approval shall not be unreasonably withheld, First Montauk may engage other persons selected by First Montauk to assist First Montauk in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided herein.
Appears in 1 contract
Samples: Placement Agent Agreement (Geeks on Call Holdings, Inc.)
Terms of the Offering. (a) The Company understands that the Initial Purchaser intends (i) to offer and sell the Securities privately pursuant to Rule 144A under the Securities Act as soon after this Agreement has prepared become effective as in the judgment of the Initial Purchaser is advisable and delivered (ii) initially to offer and sell the Securities upon the terms set forth in the Final Memorandum. The Company confirms that it has authorized the Initial Purchaser, subject to the Placement Agent restrictions set forth below, to distribute copies of the Offering Memorandum in connection with the offering of the Securities. The Initial Purchaser hereby makes to the Company the following representations, warranties and agreements:
(i) it is a Confidential Private Placement Memorandum dated as “qualified institutional buyer” within the meaning of October 22Rule 144A under the Securities Act;
(ii) offers and sales of the Securities will be made only by it or its affiliates thereof qualified to do so in the jurisdictions in which such offers or sales are made; and
(iii) (A) it has not solicited offers for, 2007 (as may be amended from time to timeor offered or sold, and including the exhibits theretowill not solicit offers for, the “Memorandum”), relating to, among other things, the business of the Company, its financial conditionor offer to sell, the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act (“Regulation D”)) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (B) it has solicited and will solicit offers for the terms Securities only from, and has offered or sold and will offer, sell or deliver the Securities only to persons whom it reasonably believes to be “qualified institutional buyers” within the meaning of Offering.
(b) Pursuant Rule 144A under the Securities Act that in purchasing the Securities are deemed to have represented and agreed as provided in the Offering Memorandum. With respect to offers and sales of the Securities to “qualified institutional buyers” within the meaning of Rule 144A, as further described in clause (iii)(B) above, the Memorandum Initial Purchaser hereby represents and agrees with the Offering shall consists of Units Company that prior to or contemporaneously with an aggregate the purchase price of up to $5,000,000, exclusive of the over-allotment option for up Securities, the Initial Purchaser will take reasonable steps to an additional $1,000,000 inform, and cause each of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) shall be $50,000. The Warrants will have a term of five (5) years its affiliates to take reasonable steps to inform, persons acquiring Securities from the Initial Closing Purchaser or affiliate, as determined the case may be, that the Securities (A) are being sold to them in Section 3(areliance on Rule 144A under the Securities Act, (B) below and will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled to such “registration rights”have not been and, anti-dilution protection, and other rights except as are described in the Offering Documents (as defined below).
(c) The Offering shall commence on Memorandum, will not be registered under the date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.”
(d) Each Prospective Investor who desires to purchase Securities shall deliver to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire Act, and such other agreements as are required to be signed in connection with the Offering (together with the Memorandum, Subscription Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”C) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for Securities.
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth herein, which approval shall may not be unreasonably withheldoffered, First Montauk may engage other persons selected by First Montauk to assist First Montauk sold or otherwise transferred except as described in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided hereinMemorandum.
Appears in 1 contract
Terms of the Offering. (a) The Company and the Guarantors understand that the Initial Purchasers intend (i) to offer privately pursuant to Rule 144A under the Securities Act their respective portions of the Securities as soon after this Agreement has prepared become effective as in the judgment of the Initial Purchasers is advisable and delivered (ii) initially to offer the Securities upon the terms set forth in the Final Memorandum. The Company and the Guarantors confirm that they have authorized the Initial Purchasers, subject to the Placement Agent restrictions set forth below, to distribute copies of the Offering Memorandum in connection with the offering of the Securities. Each Initial Purchaser hereby severally makes to the Company and the Guarantors the following representations and agreements:
(i) it is a Confidential Private Placement Memorandum dated as “qualified institutional buyer” within the meaning of October 22Rule 144A under the Securities Act;
(ii) offers and sales of the Securities will be made only by it or its affiliates thereof qualified to do so in the jurisdictions in which such offers or sales are made; and
(iii) (A) it has not solicited offers for, 2007 (as may be amended from time to timeor offered or sold, and including the exhibits theretowill not solicit offers for, the “Memorandum”), relating to, among other things, the business of the Company, its financial conditionor offer to sell, the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act (“Regulation D”)) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (B) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities only to persons who it reasonably believes to be “qualified institutional buyers” within the meaning of Rule 144A under the Securities Act that in purchasing the Securities are deemed to have represented and agreed as provided in the Offering Memorandum. With respect to offers and sales of the Securities to “qualified institutional buyers” within the meaning of Rule 144A, as described in clause (iii)(B) above, each Initial Purchaser hereby represents and agrees with the Company and the terms of Offering.
(b) Pursuant Guarantors that prior to or contemporaneously with the Offering as further described in the Memorandum the Offering shall consists of Units with an aggregate purchase price of up to $5,000,000, exclusive of the over-allotment option for up to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) shall be $50,000. The Warrants will have a term of five (5) years from Securities, the Initial Closing as determined in Section 3(a) below and Purchaser will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled take reasonable steps to such “registration rights”, anti-dilution protectioninform, and other rights cause each of its affiliates to take responsible steps to inform, persons acquiring Securities from such Initial Purchaser or affiliate, as the case may be, that the Securities (A) are being sold to them in reliance on Rule 144A under the Securities Act, (B) have not been and, except as described in the Offering Documents (as defined below).
(c) The Offering shall commence on Memorandum, will not be registered under the date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.”
(d) Each Prospective Investor who desires to purchase Securities shall deliver to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire Act, and such other agreements as are required to be signed in connection with the Offering (together with the Memorandum, Subscription Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”C) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for Securities.
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth herein, which approval shall may not be unreasonably withheldoffered, First Montauk may engage other persons selected by First Montauk to assist First Montauk sold or otherwise transferred except as described in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided hereinMemorandum.
Appears in 1 contract
Samples: Purchase Agreement (Hornbeck Offshore Services Inc /La)
Terms of the Offering. The Subscriber (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) acknowledges that:
(a) The Company has prepared this subscription is subject to rejection or allotment by the Corporation in whole or in part at any time and delivered to the Placement Agent copies of a Confidential Private Placement Memorandum dated as of October 22, 2007 in accordance with applicable Securities Laws (as may be amended from time to time, and including the exhibits thereto, the “Memorandum”defined herein), relating to, among other things, the business of the Company, its financial condition, the Securities and the terms of Offering.;
(b) Pursuant to the Offering as further described in Flow-Through Shares subscribed for by it hereunder form part of a larger issuance and sale by the Memorandum the Offering shall consists of Units with an aggregate purchase price Corporation of up to $5,000,000, exclusive 2,250,000 Flow-Through Shares at a subscription price of US$3.00 per Flow-Through Share and up to 2,700,000 regular common shares in the capital of the over-allotment option for up to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor Corporation (the “Prospective InvestorCommon Shares”) shall be $50,000. The Warrants will have at a term of five (5) years from the Initial Closing as determined in Section 3(a) below and will be exercisable at an exercise subscription price of $3.00 US$2.50 per share and shall provide for Common Share (together the “Cashless Exercise” upon certain conditions. The investors shall be entitled to such “registration rightsOffering”, anti-dilution protection, and other rights as are described in the Offering Documents (as defined below).;
(c) The the Offering shall commence is not subject to any minimum subscription level, and therefore, any funds invested under this Subscription Agreement are available to the Corporation and will be paid on the Closing Date to the Corporation, and need not be refunded to the Subscriber unless the Closing Date does not occur by such date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred agreed to as by the “Offering Period.”Corporation and the Agent;
(d) Each Prospective Investor who desires if the Closing Date does not occur on or before October 30, 2007, or such other date as may be agreed to purchase Securities shall deliver to by the Placement Agent a fully executed Corporation and the Agent, or in the event that the Corporation rejects the Subscription Agreement, Investor Questionnaire the subscription proceeds will be promptly returned to the Subscriber, without interest or deduction;
(e) the Corporation has also granted the Agent an option (the “Over-Allotment Option”), exercisable at any time up to and such other agreements as are required including the closing of the Offering to be signed increase the size of the Offering by up to 1,400,000 Common Shares at a subscription price of US$2.50 per Common Share;
(f) the Corporation and Agent have entered into, or will enter into prior to the Closing Date, an agreement (the “Agency Agreement”) whereby the Agent, in connection with the Offering will receive from the Corporation a commission equal to 8% of the gross proceeds of the Offering, (together with including any gross proceeds of the MemorandumOver-Allotment Option) and options exercisable at any time up to 18 months following the closing of the Offering to purchase Common Shares in an amount equal to 8% of the Offering (including the Over-Allotment Option) at the same prices and in the same proportions as the Common Shares and Flow-Through Shares issued pursuant to the Offering (including the Over-Allotment Option);
(g) in the event that the Offering closes but the Common Shares are not listed for trading on the Toronto Stock Exchange or the TSX Venture Exchange by December 15, Subscription Agreement, Investor Questionnaire, and other exhibits thereto2007, the “Offering Documents”) along with payment Corporation shall pay an interest penalty to the Subscriber in the form amount of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for Securities.
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies 2% of the Subscription Agreement received from such Prospective Investor Amount per month thereafter on a pro rata basis, pursuant to the Company. All funds shall terms to be held agreed upon in the segregated non-interest-bearing escrow account pending acceptance Agency Agreement; and
(h) the Corporation is a company incorporated under the laws of the subscriptions aggregating to State of Delaware, and because the Minimum Offering and no funds shall be released without execution Corporation is located outside of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth hereinCanada, which approval shall it may not be unreasonably withheldpossible for you to effect service of process on them within Canada or to enforce against them, First Montauk in Canada, judgements obtained in Canadian courts; further, it may engage other persons selected by First Montauk not be possible to assist First Montauk enforce judgments of Canadian courts against the Corporation in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided hereinUnited States.
Appears in 1 contract
Samples: Flow Through Subscription Agreement (Kodiak Energy, Inc.)
Terms of the Offering. (a) 1.1 The Company has prepared and delivered is offering to the Placement Agent copies undersigned Investor, a bridge financing (the “Bridge Offering”) by the Company of an aggregate of $350,000 in 10% Promissory Notes and 1,400,000 shares of HemoBioTech, Inc. Common Stock (the “Bridge Unit”). Each Bridge Unit consists of the principal amount of a Confidential Private Placement Memorandum dated as 10% Promissory Note (“Bridge Note”) set forth on the signature page hereof plus 4 shares of October 22, 2007 shares of Common Stock for each $1.00 invested in the Bridge Notes (as may be amended from time to time, and including the exhibits theretocollectively, the “MemorandumSecurities”), relating toto be offered on a “best efforts” basis. The Bridge Offering is being made only to Investors who qualify as “accredited investors” as such term is defined in Rule 501 of Regulation D under the Securities Act of 1933, among other things, as amended (the business “Securities Act”). The Company also expects to effect a subsequent private placement (the “Private Placement”) to be sold only to “accredited investors.” The Investors shall be required to convert their Bridge Notes (but not the shares of Common Stock included in the Bridge Units) for the securities offered in the proposed Private Placement unless earlier prepaid by the Company, its financial condition, the Securities and the terms of Offering.
(b) Pursuant to the Offering as further described in the Memorandum the 1.2 This Bridge Offering shall consists of Units with an aggregate purchase price of up to $5,000,000terminate at 5:00 p.m. Eastern Time on November 12, exclusive of 2009 (the over-allotment option “Termination Date”), unless extended by the Company at its sole discretion, for up to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) shall be $50,000. The Warrants will have a term of five (5) years from the Initial Closing as determined in Section 3(a) below and will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled to such “registration rights”, anti-dilution protection, and other rights as are described in the Offering Documents (as defined below)30 days.
(c) The Offering shall commence on 1.3 Subject to the date hereof terms and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007conditions of this Agreement, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.”
(d) Each Prospective Investor who desires to purchase Securities shall deliver issue to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire Investor, and such other agreements as are required the Investor agrees to be signed subscribe to, the number of Bridge Units set forth upon the signature page hereof on the terms and conditions set forth in connection with the Offering (this Agreement.
1.4 An executed and properly completed copy of this Agreement together with the Memorandumother documents set forth above under “Subscription Instructions” should be delivered, Subscription Agreementto Xxxxxx Associates, Investor QuestionnaireL.P., and other exhibits thereto00 Xxxxxxxx, the “Offering Documents”) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchaseXxx Xxxx, XX 00000; Attention: Xx. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for SecuritiesXxxxxx Xxxxxxx.
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among 1.5 If this Agreement is accepted by the Company, Placement Agent and Signature Bank, as escrow agentin whole or in part, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor subject to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth hereinin Section 2.2 of this Agreement, which approval the Company shall not be unreasonably withheldissue the Bridge Units subscribed for hereby, First Montauk may engage other persons selected by First Montauk to assist First Montauk in dated the date of closing of the Bridge Offering of such Agreement (each such broker/dealers being hereinafter referred to as a the “Selling Group MemberClosing”) and First Montauk return to the Investor a fully executed copy of this Agreement. The Investor hereby authorizes and directs the Company to deliver certificates representing the Bridge Units to be issued to such Investor pursuant to this Agreement.
1.6 The undersigned may allow not withdraw this subscription or any amount, paid pursuant thereto, except as otherwise provided below.
1.7 If the Investor is not a United States person, such Selling Group Member such part Investor hereby represents that it has satisfied itself as to the full observance of the compensation laws of its jurisdiction in connection with any invitation to subscribe for the Bridge Units or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the Bridge Units, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale or transfer of the Bridge Units. Such Investor’s subscription and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties tofor, and covenants and agreements withhis or her continued beneficial ownership of the Bridge Units, will not violate any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided hereinapplicable securities or other laws of the Investor’s jurisdiction.
Appears in 1 contract
Samples: Stock and Note Purchase Agreement (Hemobiotech, Inc.)
Terms of the Offering. The Company understands that the Initial Purchasers intend to offer privately under the Securities Act their respective portions of the Securities as soon after this Agreement has become effective as in the judgment of the Initial Purchasers is advisable and initially to offer the Securities upon the terms set forth in the Final Offering Memorandum. The Company confirms that it has authorized the Initial Purchasers, subject to the restrictions set forth below, to distribute copies of the Offering Memorandum in connection with the offering of the Securities.
(a) The Company has prepared Each Initial Purchaser severally represents and delivered warrants to the Placement Agent copies Company that it is an “accredited investor” within the meaning of a Confidential Private Placement Memorandum dated as of October 22, 2007 (as may be amended from time to time, and including the exhibits thereto, the “Memorandum”), relating to, among other things, the business of the Company, its financial condition, Regulation D under the Securities and the terms of OfferingAct.
(b) Pursuant Each Initial Purchaser severally acknowledges that the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an exemption from the Offering as further described in the Memorandum the Offering shall consists of Units with an aggregate purchase price of up to $5,000,000, exclusive registration requirements of the over-allotment option for up to an additional $1,000,000 Securities Act. Each Initial Purchaser severally represents and agrees that it has offered and sold the Securities, and will offer and sell the Securities (i) as part of gross proceeds. The minimum subscription amount per prospective investor its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 144A under the Securities Act (“Prospective InvestorRule 144A”) shall be $50,000. The Warrants will have a term of five (5) years from the Initial Closing as determined in Section 3(a) below and will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled to such “registration rights”, anti-dilution protection, and other rights as are described in the Offering Documents (as defined below).
(c) The Offering shall commence on the date hereof Each Initial Purchaser severally agrees that it and shall expire on November 19, 2007; provided however, that if the Minimum Offering each of its affiliates has not been deposited entered and will not enter into escrow on any contractual arrangement with respect to the distribution of the Securities except for any such arrangements with the other Initial Purchasers or before November 19, 2007, affiliates of the Company and Placement Agent may agree to extend other Initial Purchasers or with the Offering until January 19, 2008. Such period, as prior written consent of the same may be so extended, shall hereinafter be referred to as the “Offering PeriodCompany.”
(d) Each Prospective Investor who desires Initial Purchaser severally agrees that it and each of its affiliates will not offer or sell the Securities in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act, including, but not limited to purchase Securities shall (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Initial Purchaser severally agrees, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire , and effect that the resale of such other agreements as are required to be signed Securities has been made in connection with reliance upon the Offering (together with exemption from the Memorandum, Subscription Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt registration requirements of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered Securities Act provided by any Prospective Investor in payment for Securities.
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth herein, which approval shall not be unreasonably withheld, First Montauk may engage other persons selected by First Montauk to assist First Montauk in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided herein.Rule 144A.
Appears in 1 contract
Terms of the Offering. (a) The Company understands that the Initial Purchasers intend (i) to offer privately pursuant to Rule 144A under the Securities Act their respective portions of the Securities as soon after this Agreement has prepared become effective as in the judgment of the Initial Purchasers is advisable and delivered (ii) initially to offer the Securities upon the terms set forth in the Final Memorandum. The Company confirms that it has authorized the Initial Purchasers, subject to the Placement Agent restrictions set forth below, to distribute copies of the Offering Memorandum in connection with the offering of the Securities. Each Initial Purchaser hereby severally makes to the Company the following representations and agreements:
(i) it is a Confidential Private Placement Memorandum dated as "qualified institutional buyer" within the meaning of October 22Rule 144A under the Securities Act;
(ii) offers and sales of the Securities will be made only by it or its affiliates thereof qualified to do so in the jurisdictions in which such offers or sales are made; and
(A) it has not solicited offers for, 2007 (as may be amended from time to timeor offered or sold, and including the exhibits theretowill not solicit offers for, the “Memorandum”), relating to, among other things, the business of the Company, its financial conditionor offer to sell, the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act ("REGULATION D")) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (B) it has solicited and will solicit offers for the terms Securities only from, and has offered or sold and will offer, sell or deliver the Securities only to persons who it reasonably believes to be "qualified institutional buyers" or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to such Initial Purchaser that each such account is a "qualified institutional buyers," within the meaning of Offering.
(b) Pursuant Rule 144A under the Securities Act that in purchasing the Securities are deemed to have represented and agreed as provided in the Offering Memorandum. With respect to offers and sales of the Securities to "qualified institutional buyers" within the meaning of Rule 144A, as further described in clause (iii)(B) above, each Initial Purchaser hereby represents and agrees with the Memorandum Company that prior to or contemporaneously with the Offering shall consists of Units with an aggregate purchase price of up to $5,000,000, exclusive of the over-allotment option for up to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) shall be $50,000. The Warrants will have a term of five (5) years from Securities, the Initial Closing as determined in Section 3(a) below and Purchaser will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled take reasonable steps to such “registration rights”, anti-dilution protectioninform, and other rights cause each of its affiliates to take responsible steps to inform, persons acquiring Securities from such Initial Purchaser or affiliate, as the case may be, that the Securities (A) are being sold to them in reliance on Rule 144A under the Securities Act, (B) have not been and, except as described in the Offering Documents (as defined below).
(c) The Offering shall commence on Memorandum, will not be registered under the date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.”
(d) Each Prospective Investor who desires to purchase Securities shall deliver to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire Act, and such other agreements as are required to be signed in connection with the Offering (together with the Memorandum, Subscription Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”C) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for Securities.
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth herein, which approval shall may not be unreasonably withheldoffered, First Montauk may engage other persons selected by First Montauk to assist First Montauk sold or otherwise transferred except as described in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided hereinMemorandum.
Appears in 1 contract
Terms of the Offering. (a) The Company confirms that it has prepared and delivered authorized the Initial Purchasers, subject to the Placement Agent restrictions set forth below, to distribute copies of the Offering Memorandum in connection with the offering of the Securities. Each Initial Purchaser hereby severally makes to the Company the following representations and agreements:
(i) it is a Confidential Private Placement Memorandum dated as “qualified institutional buyer” within the meaning of October 22Rule 144A;
(ii) offers and sales of the Securities will be made only by it or its affiliates qualified to do so in the jurisdictions in which such offers or sales are made;
(iii) (A) it has not solicited offers for, 2007 (as may be amended from time to timeor offered or sold, and including the exhibits theretowill not solicit offers for, the “Memorandum”), relating to, among other things, the business of the Company, its financial conditionor offer to sell, the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act (“Regulation D”)) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and (B) it has solicited and will solicit offers for the terms Securities only from, and has offered or sold and will offer, sell or deliver the Securities only to, persons whom it reasonably believes to be “qualified institutional buyers” within the meaning of OfferingRule 144A that in purchasing the Securities are deemed to have represented and agreed as provided in the Offering Memorandum; and
(iv) prior to or contemporaneously with any sale of the Securities by such Initial Purchaser or any of its affiliates, the Initial Purchaser will take reasonable steps to inform, and cause each of its affiliates to take responsible steps to inform, persons acquiring Securities from such Initial Purchaser or affiliate, as the case may be, that the Securities (A) are being sold to them in reliance on Rule 144A, (B) have not been and, except as described in the Offering Memorandum, will not be registered under the Securities Act and (C) may not be offered, sold or otherwise transferred except as described in the Offering Memorandum.
(b) Pursuant The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to the Offering as further described in the Memorandum the Offering shall consists or through any affiliate of Units with an aggregate purchase price of up Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to $5,000,000or through any Initial Purchaser, exclusive of the over-allotment option for up to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) provided that any such offers or sales shall be $50,000. The Warrants will have a term of five (5) years from the Initial Closing as determined made in Section 3(a) below and will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled to such “registration rights”, anti-dilution protection, and other rights as are described in the Offering Documents (as defined below).
(c) The Offering shall commence on the date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.”
(d) Each Prospective Investor who desires to purchase Securities shall deliver to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire , and such other agreements as are required to be signed in connection accordance with the Offering (together with the Memorandum, Subscription provisions of this Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for Securities.
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth herein, which approval shall not be unreasonably withheld, First Montauk may engage other persons selected by First Montauk to assist First Montauk in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided herein.
Appears in 1 contract
Terms of the Offering. The Subscriber (on its own behalf and, if applicable, on behalf of each person on whose behalf the Subscriber is contracting) acknowledges that:
(a) The Company has prepared this subscription is subject to rejection or allotment by the Corporation in whole or in part at any time and delivered to the Placement Agent copies of a Confidential Private Placement Memorandum dated as of October 22, 2007 in accordance with applicable Securities Laws (as may be amended from time to time, and including the exhibits thereto, the “Memorandum”defined herein), relating to, among other things, the business of the Company, its financial condition, the Securities and the terms of Offering.;
(b) Pursuant to the Offering as further described in Flow-Through Shares subscribed for by it hereunder form part of a larger issuance and sale by the Memorandum the Offering shall consists of Units with an aggregate purchase price Corporation of up to $5,000,000, exclusive US$9,000,000 of common shares of the overCorporation consisting of Flow-allotment option for up to an additional $1,000,000 Through Shares at a subscription price of gross proceeds. The minimum subscription amount US$3.00 per prospective investor Flow-Through Share and regular common shares in the capital of the Corporation (the “Prospective InvestorCommon Shares”) shall be $50,000. The Warrants will have at a term of five (5) years from the Initial Closing as determined in Section 3(a) below and will be exercisable at an exercise subscription price of $3.00 US$2.50 per share and shall provide for Common Share (together the “Cashless Exercise” upon certain conditions. The investors shall be entitled to such “registration rightsOffering”, anti-dilution protection, and other rights as are described in the Offering Documents (as defined below).;
(c) The the Offering shall commence is not subject to any minimum subscription level, and therefore, any funds invested under this Subscription Agreement are available to the Corporation and will be paid on the Closing Date to the Corporation, and need not be refunded to the Subscriber unless the Closing Date does not occur by such date hereof as may be agreed to by the Corporation and shall expire on November 19, 2007; provided however, that the Agent;
(d) if the Minimum Offering has Closing Date does not been deposited into escrow occur on or before November 1930, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, or such other date as the same may be so extendedagreed to by the Corporation and the Agent, shall hereinafter be referred to as or in the “Offering Period.”
(d) Each Prospective Investor who desires to purchase Securities shall deliver to event that the Placement Agent a fully executed Corporation rejects the Subscription Agreement, Investor Questionnaire the subscription proceeds will be promptly returned to the Subscriber, without interest or deduction;
(e) the Corporation has also granted the Agent an option (the “Over-Allotment Option”), exercisable at any time up to and such other agreements as are required including the closing of the Offering to be signed increase the size of the Offering by up to 1,200,000 Common Shares at a subscription price of US$2.50 per Common Share;
(f) the Corporation and Agent have entered into, or will enter into prior to the Closing Date, an agreement (the “Agency Agreement”) whereby the Agent, in connection with the Offering will receive from the Corporation a commission equal to 8% of the gross proceeds of the Offering, (together with including any gross proceeds of the MemorandumOver-Allotment Option) and options exercisable at any time up to 18 months following the closing of the Offering to purchase Common Shares in an amount equal to 8% of the Offering (including the Over-Allotment Option) at the same prices and in the same proportions as the Common Shares and Flow-Through Shares issued pursuant to the Offering (including the Over-Allotment Option);
(g) in the event that the Offering closes but the Common Shares are not listed for trading on the Toronto Stock Exchange or the TSX Venture Exchange by December 29, Subscription Agreement, Investor Questionnaire, and other exhibits thereto2007, the “Offering Documents”) along with payment Corporation shall pay an interest penalty to the Subscriber in the form amount of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for Securities.
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies 2% of the Subscription Agreement received from such Prospective Investor Amount per month thereafter on a pro rata basis, pursuant to the Company. All funds shall terms to be held agreed upon in the segregated non-interest-bearing escrow account pending acceptance Agency Agreement; and
(h) the Corporation is a company incorporated under the laws of the subscriptions aggregating to State of Delaware, and because the Minimum Offering and no funds shall be released without execution Corporation is located outside of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth hereinCanada, which approval shall it may not be unreasonably withheldpossible for you to effect service of process on them within Canada or to enforce against them, First Montauk in Canada, judgements obtained in Canadian courts; further, it may engage other persons selected by First Montauk not be possible to assist First Montauk enforce judgments of Canadian courts against the Corporation in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided hereinUnited States.
Appears in 1 contract
Samples: Flow Through Subscription Agreement (Kodiak Energy, Inc.)
Terms of the Offering. 2.1. The Subscriber on its own behalf and, if applicable, on behalf of any Disclosed Principal for whom it is acting, acknowledges and agrees that:
(a) The Company has prepared and delivered to the Placement Agent copies Purchased Securities being subscribed for hereunder form part of a Confidential Private Placement Memorandum dated as larger offering of October 22, 2007 up to 20,000,000 Shares (as may be amended from time to time, and including the exhibits thereto, the “MemorandumOffered Securities”) offered for sale by the Corporation at a subscription price of $0.075 per Share (the “Subscription Price”), relating tofor gross aggregate proceeds of up to $1,500,000; provided that the Corporation may at its sole discretion accept a larger aggregate subscription, among other things, in accordance with Applicable Securities Laws and the business policies of the Company, its financial condition, the Securities and the terms of Offering.Exchange;
(b) Pursuant there is no minimum amount required to be raised by the sale of the Offered Securities and the proceeds of the Offering will be immediately available to the Offering as further described in the Memorandum the Offering shall consists of Units with an aggregate purchase price of up to $5,000,000, exclusive of the over-allotment option for up to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) shall be $50,000. The Warrants will have a term of five (5) years from the Initial Closing as determined in Section 3(a) below and will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled to such “registration rights”, anti-dilution protection, and other rights as are described in the Offering Documents (as defined below).Corporation;
(c) The Offering shall commence on this subscription is subject to rejection, acceptance or allotment by the date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on Corporation in whole or before November 19, 2007in part. If this Agreement is rejected in whole or in part, the Company Subscriber acknowledges that the unused portion of the aggregate Subscription Price of the Purchased Securities will be promptly returned to it without interest or deduction. Subject to the terms and Placement Agent may agree conditions hereof, this subscription will be effective upon its acceptance by the Corporation and subject to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.”receipt of all applicable regulatory approvals;
(d) Each Prospective Investor who desires the Offered Securities will be issued on a private placement basis to purchase qualified purchasers pursuant to exemptions from the prospectus and registration requirements under the Applicable Securities shall deliver to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire , and such other agreements as are required to be signed in connection with the Offering (together with the Memorandum, Subscription Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for Securities.Laws; and
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow the Offering is not brokered and, accordingly, no agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among has conducted due diligence or negotiated the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies terms of the Subscription Agreement received from such Prospective Investor to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance Offering on behalf of the subscriptions aggregating Subscriber. Where permitted by Applicable Securities Laws, the Corporation may pay a finder’s fee to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance individuals or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth herein, which approval shall not be unreasonably withheld, First Montauk may engage other persons selected by First Montauk to assist First Montauk companies who refer investors who participate in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk in an amount that the Corporation in its sole discretion may allow such Selling Group Member such part of the compensation and payment of expenses determine, which fee will be payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided hereincash and/or securities.
Appears in 1 contract
Samples: Common Share Subscription Agreement (Drescher Anton J)
Terms of the Offering. (a) The Company understands that the Initial Purchasers intend (i) to offer privately pursuant to Rule 144A under the Securities Act their respective portions of the Securities as soon after this Agreement has prepared become effective as in the judgment of the Initial Purchasers is advisable and delivered (ii) initially to offer the Securities upon the terms set forth in the Final Memorandum. The Company confirms that it has authorized the Initial Purchasers, subject to the Placement Agent restrictions set forth below, to distribute copies of a Confidential Private Placement the Final Memorandum dated as of October 22, 2007 (as may be amended from time to time, and including the exhibits thereto, the “Memorandum”), relating to, among other things, the business of the Company, its financial condition, the Securities and the terms of Offering.
(b) Pursuant to the Offering as further described in the Memorandum the Offering shall consists of Units with an aggregate purchase price of up to $5,000,000, exclusive of the over-allotment option for up to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) shall be $50,000. The Warrants will have a term of five (5) years from the Initial Closing as determined in Section 3(a) below and will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled to such “registration rights”, anti-dilution protection, and other rights as are described in the Offering Documents (as defined below).
(c) The Offering shall commence on the date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.”
(d) Each Prospective Investor who desires to purchase Securities shall deliver to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire , and such other agreements as are required to be signed in connection with the Offering (together with the Memorandum, Subscription Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt offering of the executed Offering Documents, the Placement Agent shall forward such documents Securities. Each Initial Purchaser hereby severally makes to the Company for reviewthe following representations and agreements:
(i) it is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act;
(ii) offers and sales of the Securities will be made only by it or its affiliates qualified to do so in the jurisdictions in which such offers or sales are made;
(iii) (A) it has not solicited offers for, keeping a copy of such documents for its records. The Placement Agent shall or offered or sold, and will not have any obligation to independently verify solicit offers for, or offer or sell, the accuracy or completeness Securities by means of any information contained form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act ("Regulation D")) or in any Subscription Agreement manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and (B) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the authenticitySecurities only to, sufficiency, or validity persons who it reasonably believes to be "qualified institutional buyers" within the meaning of any check delivered by any Prospective Investor Rule 144A under the Securities Act that in payment for Securities.purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under "Notice to investors"; and
(eiv) The Placement Agent shall deliver all subscription funds received prior to or contemporaneously with any sale of Securities by such Initial Purchaser or any of its affiliates, the Initial Purchaser will take reasonable steps to inform, and cause each of its affiliates to take reasonable steps to inform, persons acquiring Securities from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Banksuch Initial Purchaser or affiliate, as escrow agentthe case may be, that the Securities (A) are being sold to them in reliance on Rule 144A under the Securities Act, (B) have not been and, except as described in the Final Memorandum, will not be registered under the Securities Act, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor to the Company. All funds shall (C) may not be held offered, sold or otherwise transferred except as described in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscriptionFinal Memorandum.
(f) Subject to the approval of the Company and the conditions set forth herein, which approval shall not be unreasonably withheld, First Montauk may engage other persons selected by First Montauk to assist First Montauk in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided herein.
Appears in 1 contract
Terms of the Offering. (a) The Company understands that the Initial Purchasers intend (i) to offer privately pursuant to Rule 144A under the Securities Act their respective portions of the Securities as soon after this Agreement has prepared become effective as in the judgment of the Initial Purchasers is advisable and delivered (ii) initially to offer the Securities upon the terms set forth in the Final Memorandum. The Company confirms that it has authorized the Initial Purchasers, subject to the Placement Agent restrictions set forth below, to distribute copies of a Confidential Private Placement Memorandum dated as of October 22, 2007 (as may be amended from time to time, and including the exhibits thereto, the “Memorandum”), relating to, among other things, the business of the Company, its financial condition, the Securities and the terms of Offering.
(b) Pursuant to the Offering as further described in the Memorandum the Offering shall consists of Units with an aggregate purchase price of up to $5,000,000, exclusive of the over-allotment option for up to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) shall be $50,000. The Warrants will have a term of five (5) years from the Initial Closing as determined in Section 3(a) below and will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled to such “registration rights”, anti-dilution protection, and other rights as are described in the Offering Documents (as defined below).
(c) The Offering shall commence on the date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.”
(d) Each Prospective Investor who desires to purchase Securities shall deliver to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire , and such other agreements as are required to be signed in connection with the Offering (together with the Memorandum, Subscription Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt offering of the executed Offering Documents, the Placement Agent shall forward such documents Securities. Each Initial Purchaser hereby severally makes to the Company for reviewthe following representations and agreements:
(i) it is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act;
(ii) offers and sales of the Securities will be made only by it or its affiliates thereof qualified to do so in the jurisdictions in which such offers or sales are made; and
(iii) (A) it has not solicited offers for, keeping a copy of such documents for its records. The Placement Agent shall or offered or sold, and will not have any obligation solicit offers for, or offer to independently verify sell, the accuracy or completeness Securities by means of any information contained form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act (“Regulation D”)) or in any Subscription Agreement manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (B) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the authenticity, sufficiency, or validity Securities only to persons who it reasonably believes to be “qualified institutional buyers” within the meaning of any check delivered by any Prospective Investor Rule 144A under the Securities Act that in payment for Securitiespurchasing the Securities are deemed to have represented and agreed as provided in the Offering Memorandum.
(eiv) The Placement Agent the transfer restriction and other provisions set forth in the Final Memorandum under the headings “Transfer Restrictions” and “Notice to Investors,” including the legends required thereby, shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor apply to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice Securities except as otherwise agreed by the Company and the Placement Agent. The Initial Purchasers; and
(v) it understands that the Company shall notify the Placement Agent promptly and, for purposes of the acceptance or rejection or any subscription.
opinion to be delivered to the Initial Purchasers pursuant to Section 6(e), (f) Subject and (h) hereof, counsel to the approval of the Company and counsel to the conditions set forth hereinInitial Purchaser will rely upon the accuracy and truth of the foregoing representations and hereby consents to such reliance. With respect to offers and sales of the Securities inside the United States to “qualified institutional buyers” within the meaning of Rule 144A, which approval shall as described in clause (iii)(B) above, each Initial Purchaser hereby represents and agrees with the Company that prior to or contemporaneously with the purchase of the Securities, the Initial Purchaser will take reasonable steps to inform, and cause each of its affiliates to take responsible steps to inform, U.S. persons acquiring Securities from such Initial Purchaser or affiliate, as the case may be, or other person acquiring Securities from such Initial Purchaser or affiliate in the United States, as the case may be, that the Securities (A) are being sold to them in reliance on Rule 144A under the Securities Act, (B) have not be unreasonably withheldbeen and, First Montauk may engage other persons selected by First Montauk to assist First Montauk except as described in the Offering Memorandum, will not be registered under the Securities Act, and (each such broker/dealers being hereinafter referred to C) may not be offered, sold or otherwise transferred except as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part described in the Offering Memorandum. Each of the compensation and payment Initial Purchasers also agrees that it will not offer, sell or deliver any of expenses payable to First Montauk the Securities in any jurisdiction outside the United States except under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm circumstances that will result in good standing as a broker-dealer under compliance with the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided hereinapplicable laws thereof.
Appears in 1 contract
Terms of the Offering. (a) The Company understands that the Initial Purchaser intends (i) to offer privately pursuant to Rule 144A under the Securities Act their respective portions of the Securities as soon after this Agreement has prepared become effective as in the judgment of the Initial Purchaser is advisable and delivered (ii) initially to offer the Securities upon the terms set forth in the Final Memorandum. The Company confirms that it has authorized the Initial Purchaser, subject to the Placement Agent restrictions set forth below, to distribute copies of the Offering Memorandum in connection with the offering of the Securities. The Initial Purchaser hereby makes to the Company the following representations and agreements:
(i) the Initial Purchaser is a Confidential Private Placement Memorandum dated as “qualified institutional buyer” within the meaning of October 22Rule 144A under the Securities Act;
(ii) offers and sales of the Securities will be made only by the Initial Purchaser or its affiliates thereof qualified to do so in the jurisdictions in which such offers or sales are made;
(iii) (A) the Initial Purchaser has not solicited offers for, 2007 (as may be amended from time to timeor offered or sold, and including the exhibits theretowill not solicit offers for, the “Memorandum”), relating to, among other things, the business of the Company, its financial conditionor offer to sell, the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act (“Regulation D”)) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (B) the terms Initial Purchaser has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities only to persons who it reasonably believes to be “qualified institutional buyers” within the meaning of Offering.Rule 144A under the Securities Act that in purchasing the Securities are deemed to have represented and agreed as provided in the Offering Memorandum;
(biv) Pursuant the Initial Purchaser has not offered or sold and, prior to the Offering date six months after the date of issuance of the notes, will not offer or sell any notes to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as further principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the United Kingdom Public Offers of Securities Regulations 1995 (as amended);
(v) the Initial Purchaser (i) is a person whose ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of its business and (ii) has not offered or sold and will not offer or sell the notes other than to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or as agent) for the purposes of their businesses or who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses where the issue of the notes would otherwise constitute a contravention of Section 19 of the United Kingdom Financial Services and Markets Act 2000 (the “FSMA”);
(vi) the Initial Purchaser has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of the notes in circumstances in which Section 21(1) of the FSMA does not apply to us or the guarantors; and
(vii) the Initial Purchaser has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the notes in, from or otherwise involving the United Kingdom. With respect to offers and sales of the Securities inside the United States to “qualified institutional buyers” within the meaning of Rule 144A, as described in clause (iii)(B) above, the Memorandum Initial Purchaser hereby represents and agrees with the Offering shall consists of Units Company that prior to or contemporaneously with an aggregate the purchase price of up to $5,000,000, exclusive of the over-allotment option for up to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) shall be $50,000. The Warrants will have a term of five (5) years from Securities, the Initial Closing as determined in Section 3(a) below and Purchaser will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled take reasonable steps to such “registration rights”, anti-dilution protectioninform, and cause each of its affiliates to take responsible steps to inform, U.S. persons acquiring Securities from such Initial Purchaser or affiliate, as the case may be, or other rights person acquiring Securities from such Initial Purchaser or affiliate in the United States, as the case may be, that the Securities (A) are being sold to them in reliance on Rule 144A under the Securities Act, (B) have not been and, except as described in the Offering Documents (as defined below).
(c) The Offering shall commence on Memorandum, will not be registered under the date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.”
(d) Each Prospective Investor who desires to purchase Securities shall deliver to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire Act, and such other agreements as are required to be signed in connection with the Offering (together with the Memorandum, Subscription Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”C) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for Securities.
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth herein, which approval shall may not be unreasonably withheldoffered, First Montauk may engage other persons selected by First Montauk to assist First Montauk sold or otherwise transferred except as described in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided hereinMemorandum.
Appears in 1 contract
Terms of the Offering. (a) The Company understands that the Initial Purchasers intend (i) to offer privately pursuant to Rule 144A under the Securities Act their respective portions of the Securities as soon after this Agreement has prepared become effective as in the judgment of the Initial Purchasers is advisable and delivered (ii) initially to offer the Securities upon the terms set forth in the Final Memorandum. The Company confirms that it has authorized the Initial Purchasers, subject to the Placement Agent restrictions set forth below, to distribute copies of the Offering Memorandum in connection with the offering of the Securities. Each Initial Purchaser hereby severally makes to the Company the following representations and agreements:
(i) it is a Confidential Private Placement Memorandum dated as “qualified institutional buyer” within the meaning of October 22Rule 144A under the Securities Act;
(ii) offers and sales of the Securities will be made only by it or its affiliates thereof qualified to do so in the jurisdictions in which such offers or sales are made; and
(iii) (A) it has not solicited offers for, 2007 (as may be amended from time to timeor offered or sold, and including the exhibits theretowill not solicit offers for, the “Memorandum”), relating to, among other things, the business of the Company, its financial conditionor offer to sell, the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act (“Regulation D”)) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (B) it has solicited and will solicit offers for the terms Securities only from, and has offered or sold and will offer, sell or deliver the Securities only to persons who it reasonably believes to be “qualified institutional buyers” within the meaning of Offering.
(b) Pursuant Rule 144A under the Securities Act that in purchasing the Securities are deemed to have represented and agreed as provided in the Offering Memorandum. With respect to offers and sales of the Securities to “qualified institutional buyers” within the meaning of Rule 144A, as further described in clause (iii)(B) above, each Initial Purchaser hereby represents and agrees with the Memorandum Company that prior to or contemporaneously with the Offering shall consists of Units with an aggregate purchase price of up to $5,000,000, exclusive of the over-allotment option for up to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) shall be $50,000. The Warrants will have a term of five (5) years from Securities, the Initial Closing as determined in Section 3(a) below and Purchaser will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled take reasonable steps to such “registration rights”, anti-dilution protectioninform, and cause each of its affiliates to take responsible steps to inform, persons acquiring Securities from such Initial Purchaser or affiliate, as the case may be, or other rights person acquiring Securities from such Initial Purchaser or affiliate, as the case may be, that the Securities (A) are being sold to them in reliance on Rule 144A under the Securities Act, (B) have not been and, except as described in the Offering Documents (as defined below).
(c) The Offering shall commence on Memorandum, will not be registered under the date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.”
(d) Each Prospective Investor who desires to purchase Securities shall deliver to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire Act, and such other agreements as are required to be signed in connection with the Offering (together with the Memorandum, Subscription Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”C) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for Securities.
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth herein, which approval shall may not be unreasonably withheldoffered, First Montauk may engage other persons selected by First Montauk to assist First Montauk sold or otherwise transferred except as described in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided hereinMemorandum.
Appears in 1 contract
Terms of the Offering. (a) The Company understands that the Initial Purchasers intend to offer the Securities for resale on the terms set forth in the Final Memorandum. The Company confirms that it has prepared and delivered authorized the Initial Purchasers, subject to the Placement Agent restrictions set forth below, to distribute copies of the Offering Memorandum in connection with the offering of the Securities. Each Initial Purchaser hereby severally but not jointly makes to the Company the following representations and agreements:
(i) it is a Confidential Private Placement Memorandum dated as “qualified institutional buyer” within the meaning of October 22Rule 144A under the Securities Act;
(ii) offers and sales of the Securities will be made only by it or its affiliates qualified to do so in the jurisdictions in which such offers or sales are made;
(iii) it has not solicited offers for, 2007 (as may be amended from time to timeor offered or sold, and including the exhibits theretowill not solicit offers for, the “Memorandum”), relating to, among other things, the business of the Company, its financial conditionor offer to sell, the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act (“Regulation D”)) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act
(iv) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities as part of their initial offering except:
(A) within the United States to persons who it reasonably believes to be “qualified institutional buyers” within the meaning of Rule 144A under the Securities Act that in purchasing the Securities are deemed to have represented and agreed as provided in the Offering Memorandum; or
(B) in accordance with the restrictions set forth in Annex A hereto; and
(v) at or prior to the delivery of written confirmations of the initial resale of the Securities by the Initial Purchasers, the Initial Purchasers shall deliver to the prospective purchasers a copy of the Final Memorandum, together with all supplements and amendments thereto, provided the Company and the terms Subsidiary Guarantor shall have complied with Section 5(a) hereof. With respect to offers and sales of Offering.
(b) Pursuant the Securities to “qualified institutional buyers” within the Offering meaning of Rule 144A, as further described in clause (iv)(A) above, each Initial Purchaser hereby represents and agrees with the Memorandum Company and the Offering shall consists of Units Subsidiary Guarantor that prior to or contemporaneously with an aggregate the purchase price of up to $5,000,000, exclusive of the over-allotment option for up Securities, such Initial Purchaser will take reasonable steps to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) shall be $50,000. The Warrants will have a term of five (5) years from the Initial Closing as determined in Section 3(a) below and will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled to such “registration rights”, anti-dilution protectioninform, and cause each of its affiliates to take responsible steps to inform, persons acquiring Securities from such Initial Purchaser or affiliate, as the case may be, or other rights person acquiring Securities from such Initial Purchaser or affiliate, as the case may be, that the Securities (A) are being sold to them in reliance on Rule 144A under the Securities Act, (B) have not been and, except as described in the Offering Documents (as defined below).
(c) The Offering shall commence on Memorandum, will not be registered under the date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.”
(d) Each Prospective Investor who desires to purchase Securities shall deliver to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire Act, and such other agreements as are required to be signed in connection with the Offering (together with the Memorandum, Subscription Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”C) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for Securities.
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth herein, which approval shall may not be unreasonably withheldoffered, First Montauk may engage other persons selected by First Montauk to assist First Montauk sold or otherwise transferred except as described in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided hereinMemorandum.
Appears in 1 contract
Terms of the Offering. (a) The Company understands that the Initial Purchasers intend (i) to offer privately pursuant to Rule 144A under the Securities Act their respective portions of the Securities as soon after this Agreement has prepared become effective as in the judgment of the Initial Purchasers is advisable and delivered (ii) initially to offer the Securities for resale upon the terms set forth in the Time of Sale Information. The Company confirms that it has authorized the Initial Purchasers, subject to the Placement Agent restrictions set forth below, to distribute copies of the Preliminary Memorandum, the other Time of Sale Information and the Final Memorandum in connection with the offering and resale of the Securities. Each Initial Purchaser hereby severally makes to the Company the following representations and agreements:
(i) it is a Confidential Private Placement Memorandum dated as “qualified institutional buyer” within the meaning of October 22Rule 144A under the Securities Act;
(ii) offers and sales of the Securities will be made only by it or its affiliates thereof qualified to do so in the jurisdictions in which such offers or sales are made; and
(iii) (A) it has not solicited offers for, 2007 (as may be amended from time to timeor offered or sold, and including the exhibits theretowill not solicit offers for, the “Memorandum”), relating to, among other things, the business of the Company, its financial conditionor offer to sell, the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act (“Regulation D”)) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (B) it has solicited and will solicit offers for the terms Securities only from, and has offered or sold and will offer, sell or deliver the Securities only to persons whom it reasonably believes to be “qualified institutional buyers” within the meaning of Offering.
(b) Pursuant Rule 144A under the Securities Act that in purchasing the Securities are deemed to have represented and agreed as provided in the Offering Memorandum. With respect to offers and sales of the Securities to “qualified institutional buyers” within the meaning of Rule 144A, as further described in clause (iii)(B) above, each Initial Purchaser hereby represents and agrees with the Memorandum Company that prior to or contemporaneously with the Offering shall consists of Units with an aggregate purchase price of up to $5,000,000, exclusive of the over-allotment option for up to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) shall be $50,000. The Warrants will have a term of five (5) years from Securities, the Initial Closing Purchaser will take reasonable steps to inform, and cause each of its affiliates to take responsible steps to inform, persons acquiring Securities from such Initial Purchaser or affiliate, as determined the case may be, or other person acquiring Securities from such Initial Purchaser or affiliate, as the case may be, that the Securities (A) are being sold to them in Section 3(areliance on Rule 144A under the Securities Act, (B) below have not been and will not be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled to such “registration rights”, anti-dilution protectionregistered under the Securities Act, and other rights (C) may not be offered, sold or otherwise transferred except as are described in the Offering Documents (as defined below)Memorandum.
(c) The Offering shall commence on the date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.”
(d) Each Prospective Investor who desires to purchase Securities shall deliver to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire , and such other agreements as are required to be signed in connection with the Offering (together with the Memorandum, Subscription Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for Securities.
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth herein, which approval shall not be unreasonably withheld, First Montauk may engage other persons selected by First Montauk to assist First Montauk in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided herein.
Appears in 1 contract
Terms of the Offering. (a) The Company understands that the Initial Purchasers intend (i) to offer privately pursuant to Rule 144A under the Securities Act their respective portions of the Securities as soon after this Agreement has prepared become effective as in the judgment of the Initial Purchasers is advisable and delivered (ii) initially to offer the Securities upon the terms set forth in the Final Memorandum. The Company confirms that it has authorized the Initial Purchasers, subject to the Placement Agent restrictions set forth below, to distribute copies of the Offering Memorandum in connection with the offering of the Securities. Each Initial Purchaser hereby severally but not jointly makes to the Company the following representations and agreements:
(i) it is a Confidential Private Placement Memorandum dated as “qualified institutional buyer” within the meaning of October 22Rule 144A under the Securities Act;
(ii) offers and sales of the Securities will be made only by it or its affiliates qualified to do so in the jurisdictions in which such offers or sales are made;
(iii) (A) it has not solicited offers for, 2007 (as may be amended from time to timeor offered or sold, and including the exhibits theretowill not solicit offers for, the “Memorandum”), relating to, among other things, the business of the Company, its financial conditionor offer to sell, the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act (“Regulation D”)) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (B) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities only to persons who it reasonably believes to be “qualified institutional buyers” within the meaning of Rule 144A under the Securities Act that in purchasing the Securities are deemed to have represented and agreed as provided in the Offering Memorandum; and
(iv) at or prior to the delivery of written confirmations of the initial resale of the Securities by the Initial Purchasers, the Initial Purchasers shall deliver to the prospective purchasers a copy of the Final Memorandum, together with all supplements and amendments thereto, provided the Company and the terms Subsidiary Guarantor shall have complied with Section 5(a) hereof. With respect to offers and sales of Offering.
(b) Pursuant the Securities to “qualified institutional buyers” within the Offering meaning of Rule 144A, as further described in clause (iii)(B) above, each Initial Purchaser hereby represents and agrees with the Memorandum Company and the Offering shall consists of Units Subsidiary Guarantor that prior to or contemporaneously with an aggregate the purchase price of up to $5,000,000, exclusive of the over-allotment option for up Securities, such Initial Purchaser will take reasonable steps to an additional $1,000,000 of gross proceeds. The minimum subscription amount per prospective investor (“Prospective Investor”) shall be $50,000. The Warrants will have a term of five (5) years from the Initial Closing as determined in Section 3(a) below and will be exercisable at an exercise price of $3.00 per share and shall provide for “Cashless Exercise” upon certain conditions. The investors shall be entitled to such “registration rights”, anti-dilution protectioninform, and cause each of its affiliates to take responsible steps to inform, persons acquiring Securities from such Initial Purchaser or affiliate, as the case may be, or other rights person acquiring Securities from such Initial Purchaser or affiliate, as the case may be, that the Securities (A) are being sold to them in reliance on Rule 144A under the Securities Act, (B) have not been and, except as described in the Offering Documents (as defined below).
(c) The Offering shall commence on Memorandum, will not be registered under the date hereof and shall expire on November 19, 2007; provided however, that if the Minimum Offering has not been deposited into escrow on or before November 19, 2007, the Company and Placement Agent may agree to extend the Offering until January 19, 2008. Such period, as the same may be so extended, shall hereinafter be referred to as the “Offering Period.”
(d) Each Prospective Investor who desires to purchase Securities shall deliver to the Placement Agent a fully executed Subscription Agreement, Investor Questionnaire Act, and such other agreements as are required to be signed in connection with the Offering (together with the Memorandum, Subscription Agreement, Investor Questionnaire, and other exhibits thereto, the “Offering Documents”C) along with payment in the form of immediately available funds for the Units that such Prospective Investor desires to purchase. Upon receipt of the executed Offering Documents, the Placement Agent shall forward such documents to the Company for review, keeping a copy of such documents for its records. The Placement Agent shall not have any obligation to independently verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any Prospective Investor in payment for Securities.
(e) The Placement Agent shall deliver all subscription funds received from a Prospective Investor to Signature Bank as escrow agent for deposit in a segregated escrow account pursuant to an escrow deposit agreement among the Company, Placement Agent and Signature Bank, as escrow agent, and shall deliver the executed copies of the Subscription Agreement received from such Prospective Investor to the Company. All funds shall be held in the segregated non-interest-bearing escrow account pending acceptance of the subscriptions aggregating to the Minimum Offering and no funds shall be released without execution of a written notice by the Company and the Placement Agent. The Company shall notify the Placement Agent promptly of the acceptance or rejection or any subscription.
(f) Subject to the approval of the Company and the conditions set forth herein, which approval shall may not be unreasonably withheldoffered, First Montauk may engage other persons selected by First Montauk to assist First Montauk sold or otherwise transferred except as described in the Offering (each such broker/dealers being hereinafter referred to as a “Selling Group Member”) and First Montauk may allow such Selling Group Member such part of the compensation and payment of expenses payable to First Montauk under Section 5 hereof as First Montauk shall determine. Any such Selling Group Member shall be a member firm in good standing as a broker-dealer under the rules of FINRA. The Company hereby agrees to make such representations and warranties to, and covenants and agreements with, any Selling Group Member (including an agreement to indemnify such Selling Group Member on terms substantially similar to Section 12 hereof) as provided hereinMemorandum.
Appears in 1 contract