Holder’s Representations and Warranties. Holder represents and warrants to and covenants and agrees with the Company as follows:
1. Holder is purchasing the Debenture and the Common Stock issuable upon conversion or redemption of the Debenture (the “Conversion Shares” and, collectively with the Debenture, the “Securities”) for its own account, for investment purposes only and not with a view towards or in connection with the public sale or distribution thereof in violation of the Securities Act.
2. Holder is (i) an “accredited investor” within the meaning of Rule 501 of Regulation D under the Securities Act, (ii) experienced in making investments of the kind contemplated by this Agreement, (iii) capable, by reason of its business and financial experience, of evaluating the relative merits and risks of an investment in the Securities, and (iv) able to afford the loss of its investment in the Securities.
3. Holder understands that the Securities are being offered and sold by the Company in reliance on an exemption from the registration requirements of the Securities Act and equivalent state securities and “blue sky” laws, and that the Company is relying upon the accuracy of, and Holder’s compliance with, Holder’s representations, warranties and covenants set forth in this Agreement to determine the availability of such exemption and the eligibility of Holder to purchase the Securities;
4. Holder understands that the Securities have not been approved or disapproved by the Securities and Exchange Commission (the “Commission”) or any state or provincial securities commission.
5. This Agreement has been duly and validly authorized, executed and delivered by Holder and is a valid and binding agreement of Holder enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such laws.
Holder’s Representations and Warranties. As a material inducement to the Company to enter into this Agreement and consummate the Exchange, the Holder hereby represents and warrants with and to the Company, as of the date hereof and as of the Closing Date, as follows:
Holder’s Representations and Warranties. As a material inducement to the Company to enter into this Agreement and consummate the Exchange, the Holder represents, warrants and covenants with and to the Company as follows:
Holder’s Representations and Warranties. Holder represents and warrants to the Company that:
Holder’s Representations and Warranties. The Holder represents and warrants that:
Holder’s Representations and Warranties. The Holder represents and warrants to the Company as of the date hereof, as of the Closing Time of the Underwritten Offering, and as of the Warrant Exchange Date as set forth below:
(a) the Holder is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction under which it was organized and has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution, delivery and performance of this Agreement has been duly and validly authorized by the governing body, if any, of the Holder and no other proceedings on the part of the Holder are necessary to authorize or consummate this Agreement. This Agreement has been duly and validly executed and delivered by the Holder, and (assuming the due authorization, execution and delivery hereof by the Company) constitutes the legal, valid and binding obligation of the Holder, enforceable against the Holder in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights of creditors generally and of general principles of equity.
(b) The execution, delivery and performance by the Holder of this Agreement does not and will not contravene, conflict with, constitute a violation or breach of, constitute (with or without notice or lapse of time or both) a default under, result in or give to any person any right of payment or reimbursement, termination, cancellation, modification or acceleration, loss of a material benefit under or result in the creation or imposition of any lien upon or create in any other person any claim against any of the Holder Notes or Holder Warrants, or shares of Common Stock issued or issuable to Holder under the terms of this Agreement, under any of the terms, conditions or provisions of (i) the organizational documents of the Holder, (ii) any laws binding upon or applicable to the Holder or by which any of its assets or properties is bound or (iii) any material contract to which the Holder is a party or by which any of its assets or properties is bound.
(c) No consent, waiver, approval or action of, filing with or notice to any governmental entity or third party is necessary or required under any of the terms, conditions or provisions of any law or any contract to which the Holder is a party or by which any of its assets or properties is bound for the execution, delivery and performance by the Holder of this Agreement....
Holder’s Representations and Warranties. The Holder represents and warrants to the Company:
Holder’s Representations and Warranties. Holder, by acceptance hereof, hereby represents as follows:
Holder’s Representations and Warranties. Each Holder, severally and not jointly, represents and warrants to the Company with respect to only itself that, as of the date hereof and as of the Closing Date:
Holder’s Representations and Warranties. The Holder represents and warrants that:
A. The Holder understands that (i) the Debenture and any Common Shares upon conversion of the Debenture, are not being registered under the Securities Act of 1933 or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) the Debenture and any Common Shares upon voluntary conversion are subsequently registered thereunder, or (B) Holder shall have delivered to the Company an opinion of counsel, in a generally acceptable form, to the effect that such securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration; and (ii) neither the Company nor any other party is under any obligation to register the Debenture or the Common Shares under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder, (iii) Holder is acquiring the Debenture and the Common Shares for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the Securities Act, and (iv) Holder does not presently have any agreement or understanding, directly or indirectly, with any party to distribute any of the securities.
B. The Holder has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the Debentures or the exercise of the Debentures; and (ii) the opportunity to request such additional information which the Company possesses or can acquire without unreasonable effort or expense.
C. The Holder did not (i) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio, whether closed circuit, or generally available; or (ii) attend any seminar, meeting or investor or other conference whose attendees were, to such Xxxxxx’s knowledge, invited by any general solicitation or general advertising.
D. The Holder is an “accredited investor” or a “sophisticated investor” within the meaning of Regulation D under the Securities Act. Such Holder is acquiring the Debentures for its own account and not with a present view to, or for sale in connection with, any distribution thereof in violation of the registration requirements of the Securities Act, w...
