Investor Representations and Warranties. The Investor represents and warrants to ▇▇▇▇ that: a. The Investor, or each of the funds managed by or affiliated with the Investor for which the Investor is acting as nominee, as applicable, (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), or an institutional “accredited investor” (described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Investor has completed Schedule A following the signature page hereto and the information contained therein is accurate and complete. The Investor is not an entity formed for the specific purpose of acquiring the Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c). b. The Investor acknowledges that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that neither the offer nor the sale of the Shares has been registered under the Securities Act or any other applicable securities laws. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except in compliance with any exemption therefrom and that any book entries representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer restrictions, and as a result, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year from the date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations. The Investor acknowledges and agrees that it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, pledge, transfer or other disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares directly from ▇▇▇▇. The Investor further acknowledges and agrees that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ▇▇▇▇, the Company, the Placement Agents or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ▇▇▇▇ expressly set forth in Section 6. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ▇▇▇▇, the Transactions and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges and agrees that it has reviewed, or has had an adequate opportunity to review, the SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or by means of contact from the Placement Agents, and the Shares were offered to the Investor by ▇▇▇▇ solely by direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or the Placement Agents. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges and agrees that the Shares (i) were not offered to the Investor by any form of general solicitation or general advertising and (ii) to the Investor’s knowledge without inquiry, are not being offered to the Investor in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges and agrees that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ▇▇▇▇, the Company or the Placement Agents or any of their respective affiliates or any of its or their control persons, officers, directors, employees, partners, agents or representatives), other than the representations and warranties of ▇▇▇▇ contained in Section 6, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the Transactions. g. The Investor acknowledges and agrees that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Investor is a sophisticated investor and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares. The Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ▇▇▇▇. The Investor acknowledges and agrees specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. The Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state agency, securities commission or similar authority has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. The Investor has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement and the transactions contemplated herein are within the powers of the Investor, have been duly authorized and do not and will not (i) constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii) violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding obligation of ▇▇▇▇, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity. o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions prog

Appears in 2 contracts

Sources: Subscription Agreement (Rice Acquisition Corp. II), Subscription Agreement (Rice Acquisition Corp. II)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ UPTD that: a. (a) The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an ~~institutional~~ “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule AA hereto, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act~~Act (and shall provide the requested information set forth on Schedule A hereto). The Investor, if such Investor ~~has completed Schedule A following the signature page hereto and the information contained therein~~ is ~~accurate and complete. The Investor~~ not a natural person, is not an entity formed for the specific purpose of acquiring the ~~Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors,~~ Shares and is an “institutional account” as defined in by FINRA Rule 4512(c)) of an investment adviser to which the Investor has delegated investment decision making authority. The Investor is aware that the sale of the Shares is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring the Securities for the Investor’s own account or for an account over which it exercises sole discretion for another qualified institutional buyer or accredited investor. b. (b) The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities Act ~~or any other applicable securities laws~~and that UPTD is not required to register the Shares except as set forth in Section 8 of this Subscription Agreement. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to UPTD or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in ~~compliance~~ each case, in accordance with any ~~exemption therefrom~~ applicable securities laws of the states of the United States and other applicable jurisdictions, and that any certificates or book entries representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions~~, and as a result~~, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities ~~Act (“~~Act, and that the provisions of Rule ~~144”~~144(i) ~~until at least one year from~~ will apply to the ~~date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations~~Shares. The Investor acknowledges and agrees that it has been advised to consult ~~legal counsel and~~ legal, tax and accounting ~~advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. (c) The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~UPTD, and that UPTD, the Company, and/or their respective affiliates may now or in the future own securities of UPTD and may purchase Shares. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~UPTD, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees~~, partners~~, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ UPTD expressly set forth in Section 65 of this Subscription Agreement. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. (d) The Investor acknowledges and agrees that the Investor has received or had access to such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~UPTD, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. The Investor acknowledges that Investor has consulted with its own legal, accounting, financial, regulatory, and tax advisors, to the extent deemed appropriate. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that it has ~~reviewed, or has had an adequate opportunity to review,~~ reviewed UPTD’s filings with the ~~SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to review financial and other information as it deemed necessary to make its decision, and ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. . (e) The Investor acknowledges and agrees that certain information provided to ~~it by ▇▇▇▇~~ the Investor was based on ~~good-faith~~ projections, and such ~~good-faith~~ projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the ~~good-faith~~ projections. The Investor acknowledges and agrees that UPTD and the Company do not assume responsibility for independent verification of, or the accuracy or completeness of, such information or projections. f. (f) The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~UPTD, the Company or a representative ~~thereof,~~ of UPTD or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~UPTD, the Company or a representative ~~thereof,~~ of UPTD or the ~~Placement Agents~~Company. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~UPTD, the ~~Company or the Placement Agents or~~ Company, any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, ~~partners,~~ agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ UPTD contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsUPTD. g. (g) The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in UPTD’s filings with the ~~SEC Reports~~SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges ~~and agrees~~ that ~~none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees,~~ Investor shall be ~~liable to the Investor pursuant to this Subscription Agreement~~ responsible for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the ~~Placement Agents for all~~ Investor’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither UPTD nor the Company has provided any tax advice or any ~~part~~ other representation or guarantee regarding the tax consequences of ~~loss~~ the ~~Investor may suffer~~ transactions contemplated by ~~reason of acquiring~~ the ~~Shares~~Subscription Agreement. h. (h) Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~UPTD. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. (i) In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the ~~Investor. The~~ Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the ~~Investor releases the Placement Agents,~~ representations and warranties of UPTD in ~~respect of this Subscription Agreement, the Investment Transactions or the Transactions~~Section 5. ~~j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives~~ (ij) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. (k) The Investor has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. (l) The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches, defaults or conflicts that would~~ and will not ~~reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii)~~ violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature of the Investor on this Subscription Agreement is genuine, and the ~~signatory, if the Investor is an individual,~~ signatory has legal competence and capacity to execute the same ~~or, if the Investor is not an individual,~~ or the signatory has been duly authorized to execute the same, ~~and~~ and, assuming that this Subscription Agreement constitutes the valid and binding ~~obligation~~ agreement of ~~▇▇▇▇~~UPTD, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. ~~o. The~~ (m) Neither the Investor ~~is not~~ nor any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function, is: (i) a person ~~or entity~~ named on the ~~List of~~ Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons List, the Foreign Sanctions Evaders ~~List or~~ List, the Sectoral Sanctions Identification List, ~~each~~ or any other similar list of ~~which is~~ sanctioned persons administered by ~~OFAC~~the U.S. Treasury Department’s Office of Foreign Assets Control, or in any ~~Executive Order issued~~ similar list of sanctioned persons administered by the ~~President of~~ European Union, any individual European Union member state or the United ~~States and administered by OFAC~~ Kingdom (collectively, “~~OFAC~~ Sanctions Lists”); (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union, any individual European Union member state or the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). The Investor represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. The Investor also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the European Union, any individual European Union member state or the United Kingdom, to the extent applicable to it. The Investor further represents that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor. (n) If the Investor is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) an employee benefit plan that is a ~~person~~ governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or ~~entity~~ other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws,” and together with ERISA Plans, “Plans”), the Investor represents and warrants that (A) neither UPTD nor any of its affiliates has provided investment advice or has otherwise acted as the Plan’s fiduciary, with respect to its decision to acquire and hold the Shares, and none of the parties to the Transaction is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with the Investor’s investment in the Shares; and (B) its purchase of the Shares will not result in a non-exempt prohibited by transaction under Section 406 of ERISA or Section 4975 of the Code, or any ~~OFAC sanctions prog~~applicable Similar Law. (o) The Investor has or has commitments to have and, when required to deliver payment to UPTD pursuant to Section 2 above, will have, sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement.

Appears in 2 contracts

Sources: Subscription Agreement (TradeUP Acquisition Corp.), Subscription Agreement (TradeUP Acquisition Corp.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ the Company, the Compo Guarantor and Roman that: a. The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule AB, (ii) is an “institutional account” (as defined in FINRA Rule 4512(c)), (iii) is acquiring the ~~Shares~~ Exchangeable Senior Notes only for his, her or its own account and not for the account of others, or if the Investor is subscribing for the ~~Shares~~ Exchangeable Senior Notes as a fiduciary or agent for one or more investor accounts, ~~the Investor~~ each such account is for another qualified institutional buyer or institutional “accredited investor”, (iv) has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (~~iii~~v) is not acquiring the ~~Shares~~ Exchangeable Senior Notes with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~B). The Investor is not an entity formed for the specific purpose of acquiring the ~~Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~Exchangeable Senior Notes. b. The Investor acknowledges and agrees that the ~~Shares~~ Exchangeable Senior Notes are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither~~ the ~~offer nor~~ Exchangeable Senior Notes and the ~~sale of the~~ Exchange Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Exchangeable Senior Notes and the Exchange Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to the Company, the Compo Guarantor or a respective subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act, (iii) pursuant to Rule 144 under the Securities Act, provided that all of the applicable conditions thereof (including those set forth in ~~compliance~~ Rule 144(i) which are applicable to Roman) or (iv) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of clauses (i), (iii) and (iv) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the Exchangeable Senior Notes and the Exchange Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the ~~Shares will be subject to transfer restrictions,~~ Exchangeable Senior Notes and ~~as a result,~~ the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Exchange Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act ~~(“Rule 144”)~~ until at least one year from the date that ~~▇▇▇▇~~ Roman files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under applicable SEC rules and regulations. The Investor acknowledges and agrees that it has been advised to consult legal counsel ~~and tax and accounting advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities ActExchangeable Senior Notes acquired hereunder. c. The Investor acknowledges and agrees that the Investor is purchasing the ~~Shares directly~~ Exchangeable Senior Notes from ~~▇▇▇▇~~the Company. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~Roman, ~~the~~ Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ Roman, the Company and the Compo Guarantor expressly set forth in ~~Section 6~~this Subscription Agreement. d. The Investor’s acquisition and holding of the Exchangeable Senior Notes or the Exchange Shares will not constitute ~~or result in~~ a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (“ERISA”), Section 4975 of the Code or any applicable ~~similar law. e. The Investor acknowledges and agrees that~~ Similar Law (as defined below). If the Investor is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of ERISA, (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code, (iii) an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (“Similar Law”), or (iv) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, the Investor represents and warrants that it has ~~received such information~~ not relied on Roman, the Company, the Compo Guarantor or any of their respective affiliates (the “Transaction Parties”) as the ~~Investor deems necessary in order to make an~~ Plan’s fiduciary, or for investment ~~decision with respect to the Shares, including~~advice, with respect to ~~▇▇▇▇~~its decision to acquire and hold the Exchangeable Senior Notes or the Exchange Shares, ~~the Transactions~~ and ~~the business~~ none of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges and agrees that it has reviewed, or has had an adequate opportunity to review, the SEC Reports and other information Transaction Parties shall at any time be relied upon as the ~~Investor has deemed necessary to make an investment decision~~ Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Exchangeable Senior Notes or the Exchange Shares. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. e. The Investor became aware of this offering of the Exchangeable Senior Notes and the Exchange Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~Roman, ~~the~~ Company or a representative ~~thereof,~~ of Roman or ~~by means of contact from the Placement Agents~~Company, and the Exchangeable Senior Notes and the Exchange Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~Roman, ~~the~~ Company or a representative ~~thereof,~~ of Roman or ~~the Placement Agents~~Company. The Investor did not become aware of this offering of the Exchangeable Senior Notes and the Exchange Shares, nor were the Exchangeable Senior Notes and the Exchange Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Exchangeable Senior Notes and the Exchange Shares (i) were not offered to ~~the Investor~~ it by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered to ~~the Investor~~ it in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, Roman, Company, or any of J.▇. ▇▇▇▇▇▇ Securities LLC, Barclays Capital Inc. or B R▇▇▇▇ Securities Inc. (each, a “Placement Agent”, and together the ~~Company or the~~ “Placement ~~Agents or~~ Agents”), any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, partners, agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ Roman, the Company and Compo Guarantor contained in ~~Section 6~~this Subscription Agreement, in making its investment or decision to invest in ~~▇▇▇▇. The Investor further acknowledges~~ the Company and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsRoman. g. f. The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Exchangeable Senior Notes and the Exchange Shares, including those set forth in Roman’s filings with the ~~SEC Reports~~SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Exchangeable Senior Notes and the Exchange Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision~~, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares~~. The Investor will not look to the Placement Agents for all or part of any such loss or losses the Investor may suffer and is able to sustain a complete loss on its investment in the ~~Shares. The Investor acknowledges~~ Exchangeable Senior Notes and ~~agrees that none of~~ the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Exchange Shares. h. g. Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Exchangeable Senior Notes and the Exchange Shares and determined that the Exchangeable Senior Notes and the Exchange Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~the Company and Roman. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. h. In making its decision to purchase the Exchangeable Senior Notes and the Exchange Shares, the Investor ~~has relied solely upon independent investigation made by~~ and the Investor’s professional advisor(s), if any, have (a) received, reviewed and understood the materials made available to you in connection with the Transaction, including, with respect to Roman, the Transaction, Company, the Compo Guarantor and their respective subsidiaries, and the business of Company, the Compo Guarantor and their respective subsidiaries, (b) had the opportunity to ask questions of and receive answers from the Company and Roman directly and (c) conducted and completed its own independent due diligence with respect to the Transaction. ~~The~~ Based on such information as the Investor has deemed appropriate and without reliance upon the Placement Agents, it has independently made its own analysis and decision to invest in the Company and Roman and purchase the Exchangeable Senior Notes. Without limiting the generality of the foregoing, the Investor acknowledges that he, she or it has reviewed the SEC Reports and ~~agrees that the Investor~~ has not relied on any statements or other information provided by or on behalf of any other person (including the Placement ~~Agents or any of~~ Agents, their respective ~~affiliates,~~ affiliates and control persons) concerning Roman, ~~officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the~~ Company, the ~~Business Combination Agreement~~Transaction, the ~~Transactions~~Transaction Agreement, this Subscription ~~Agreement~~Agreement or the transactions contemplated hereby or thereby, the ~~Investment Transactions, the Shares~~ Exchangeable Senior Notes or the offer and sale of the ~~Shares. Neither~~ Exchangeable Senior Notes. i. The Investor acknowledges and agrees that (i) each Placement Agent is acting solely as placement agent in connection with the Transaction and is not acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for the Investor, Roman, Company or any other person or entity in connection with the Transaction, (ii) no disclosure or offering document has been prepared in connection with the offer and sale of the Exchangeable Senior Notes by any Placement ~~Agents, nor~~ Agent or any of ~~their~~ its respective ~~affiliates~~ affiliates, and no Placement Agent has made nor will make any ~~control persons~~representation or warranty, ~~officers~~whether express or implied, ~~directors~~of any kind or character and has not provided any advice or recommendation in connection with the Transaction, ~~employees~~(iii) no Placement Agent will have any responsibility with respect to (A) any representations, ~~partners, agents~~ warranties or ~~representatives of~~ agreements made by any person or entity under or in connection with the Transaction or any of the ~~foregoing~~documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning Roman, Company or the Transaction, and (iv) no Placement Agent shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor, Roman, Company or any other person or entity), whether in contract, tort or otherwise, to the Investor, ~~and~~ or to any person claiming through the ~~Investor releases the Placement Agents~~Investor, in respect of ~~this Subscription Agreement,~~ the ~~Investment Transactions or the Transactions~~Transaction. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Exchangeable Senior Notes or the Exchange Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement ~~Agents~~ Agents, any of their respective affiliates or any person acting on their behalf have conducted with respect to the Exchangeable Senior Notes or the Exchange Shares, ~~▇▇▇▇,~~ Roman or ~~the~~ Company. The Investor further acknowledges ~~and agrees~~ that it has not relied on any information contained in any research reports or other materials prepared by the Placement ~~Agents~~Agents or any of their respective affiliates. l. k. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Exchangeable Senior Notes or made any findings or determination as to the fairness of this investment. m. l. The ~~Investor~~ Investor, if not an individual, has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. m. The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches~~and, ~~defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of~~ if the Investor ~~to enter into and timely perform its obligations under this Subscription Agreement~~is not an individual, ~~and (ii)~~ will not violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature of the Investor on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and ~~assuming that this Subscription Agreement constitutes the valid and binding obligation of ▇▇▇▇,~~ this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by ~~(i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting~~ the ~~rights of creditors generally, or (ii) principles of equity, whether considered at law or equity~~Enforceability Exceptions. o. n. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC, ”) or in any Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions ~~prog~~program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Investor is permitted to do so under applicable law. If the Investor is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required by applicable law, the Investor maintains policies and procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Exchangeable Senior Notes were legally derived. o. No disclosure or offering document has been prepared by the Placement Agents in connection with the offer and sale of the Exchangeable Senior No

Appears in 2 contracts

Sources: Merger Agreement (Roman DBDR Tech Acquisition Corp.), Subscription Agreement (Roman DBDR Tech Acquisition Corp.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ ARYA that: a. The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the Shares~~, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~. b. The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither~~ the offer ~~nor the~~ and sale of the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to ARYA or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer ~~restrictions~~restrictions and, ~~and~~ as a ~~result~~result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not immediately be eligible for ~~offer, resale, transfer, pledge or disposition~~ resale pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year from the date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulationsAct. The Investor acknowledges and agrees that it has been advised to consult legal counsel ~~and tax and accounting advisors~~ prior to making any offer, resale, ~~pledge~~transfer, pledge or transfer ~~or other disposition~~ of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~ARYA. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~ARYA, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ ARYA expressly set forth in Section 65 of this Subscription Agreement. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, without limitation, with respect to ~~▇▇▇▇~~ARYA, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that it has ~~reviewed, or has had an adequate opportunity to review,~~ reviewed ARYA’s filings with the ~~SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~ARYA, the Company or a representative ~~thereof,~~ of ARYA or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~ARYA, the Company or a representative ~~thereof,~~ of ARYA or the ~~Placement Agents~~Company. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~ARYA, the ~~Company or~~ Company, the Placement Agents or (defined below), any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, partners, agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ ARYA contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsARYA. g. The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, ~~including~~ including, without limitation, those set forth in ARYA’s filings with the ~~SEC Reports~~SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~ARYA. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. ~~The Investor acknowledges and agrees that~~ Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective ~~affiliates, control persons, officers, directors, employees, partners, agents~~ affiliates or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇foregoing concerning ARYA, the Company, the ~~credit quality of ▇▇▇▇~~ Transaction, the Transaction Agreement, this Subscription Agreement or the ~~Company~~transactions contemplated hereby or thereby, the Shares or the ~~Investor’s purchase~~ offer and sale of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. j. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. k. The Investor has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. l. The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches~~and, ~~defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of~~ if the Investor ~~to enter into and timely perform its obligations under this Subscription Agreement~~is not an individual, ~~and (ii)~~ will not conflict with or violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and ~~assuming that~~ this Subscription Agreement ~~constitutes~~ has been duly executed and delivered by the ~~valid~~ Investor and ~~binding obligation of ▇▇▇▇, this Subscription Agreement~~ constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. o. m. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC, ”) or in any Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions ~~prog~~program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (each, a “Prohibited Investor”). The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Investor is permitted to do so under applicable law. If the Investor is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including, without limitation, the OFAC List. To the extent required by applicable law, the Investor maintains policies and procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Shares were legally derived. n. The Investor acknowledges that no disclosure or offering document has been prepared by ▇▇▇▇▇▇▇▇▇ LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC or any of their respective affiliates (collectively, the “Placement Agents”) in connection with the offer and sale of the Shares. o. The Investor acknowledges that neither Placement Agent, nor any of its respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing have made any independent investigation with respect to ARYA, the Company or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by ARYA. p. The Investor acknowledges that in connection with the issue and purchase of the Shares, neither Placement Agent has acted as the Investor’s financial advisor or fiduciary. q. The Investor has or has commitments to have and, when required to deliver payment to ARYA pursuant to Section 2 above, will have, sufficient funds to pay the Subscription Amount and consummate the sale, purchase and issuance of the Shares pursuant to this Subscription Agreement. r. The Investor does not have, as of the date hereof, and during the 30-day period immediately prior to the date hereof such Investor has not entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under the Exchange Act or short sale positions with respect to the securities of ARYA. Notwithstanding the foregoing, in the case of an Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement.

Appears in 2 contracts

Sources: Business Combination Agreement (ARYA Sciences Acquisition Corp III), Subscription Agreement (ARYA Sciences Acquisition Corp III)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ the Issuer that: a. The ~~Investor, or each of the funds managed by or affiliated with the Investor for which the~~ Investor is ~~acting as nominee, as applicable,~~ (i) is not a ~~“qualified institutional buyer”~~ U.S. person (as such term is used in Regulation S) and is not acting for the account or benefit of a U.S. person and it is and located offshore (as such terms are defined in ~~Rule 144A~~ Regulation S under the Securities Act)~~, or an institutional “accredited investor” (described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A,~~ ; (ii) is acquiring the ~~Shares only~~ Securities for its own account ~~and not~~ or for ~~the~~ an account ~~of others, or if the Investor is subscribing~~ over which it exercises sole discretion for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account another non-U.S. person; and (iii) is not acquiring the ~~Shares~~ Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Investor ~~has completed Schedule A following the signature page hereto and the information contained therein is accurate and complete. The Investor~~ is not an entity formed for the specific purpose of acquiring the Shares~~, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~. b. The Investor acknowledges and agrees that the ~~Shares~~ Securities are being offered in a an offshore transaction not involving any public offering within the meaning of the Securities Act and that ~~neither~~ the offer ~~nor the~~ and sale of the ~~Shares has~~ Securities have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the ~~Shares~~ Securities may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to “offshore transactions” and following expiration of a 40-day “distribution compliance period” (each within the meaning of Regulation S), or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Shares~~ Securities shall contain a restrictive legend or notation to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the ~~Shares~~ Securities will be subject to transfer ~~restrictions~~restrictions and, ~~and~~ as a ~~result~~result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year from the date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations. The Investor acknowledges and agrees that it has been advised to consult legal counsel ~~and tax and accounting advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the ~~Shares~~Securities. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares directly from ▇▇▇▇. The Investor further acknowledges and agrees that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ▇▇▇▇, the Company, the Placement Agents or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ▇▇▇▇ expressly set forth in Section 6. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ▇▇▇▇, the Transactions and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges and agrees that it has reviewed, or has had an adequate opportunity to review, the SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or by means of contact from the Placement Agents, and the Shares were offered to the Investor by ▇▇▇▇ solely by direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or the Placement Agents. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges and agrees that the Shares (i) were not offered to the Investor by any form of general solicitation or general advertising and (ii) to the Investor’s knowledge without inquiry, are not being offered to the Investor in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges and agrees that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ▇▇▇▇, the Company or the Placement Agents or any of their respective affiliates or any of its or their control persons, officers, directors, employees, partners, agents or representatives), other than the representations and warranties of ▇▇▇▇ contained in Section 6, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the Transactions. g. The Investor acknowledges and agrees that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Investor is a sophisticated investor and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares. The Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ▇▇▇▇. The Investor acknowledges and agrees specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. The Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect For purposes of this Subscription Agreement, ~~the Investment Transactions~~ “Transfer” shall mean any direct or ~~the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates~~indirect transfer, ~~control persons~~redemption, ~~officers, directors, employees~~ disposition or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained monetization in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state agency, securities commission or similar authority has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. The Investor has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement and the transactions contemplated herein are within the powers of the Investor, have been duly authorized and do not and will not (i) constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii) violate any provisions of the Investor’s organizational documentsmanner whatsoever, including, without limitation, ~~its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on~~ covenants and agreements included in this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding obligation of ▇▇▇▇, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equityAgreement. o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions prog

Appears in 2 contracts

Sources: Subscription Agreement (Selina Hospitality PLC), Subscription Agreement (Selina Hospitality PLC)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ the Company that: a. (a) The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described~~ as defined in Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the Shares~~, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~. b. (b) The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, and that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in ~~compliance~~ each of clauses (i) and (iii), in accordance with any exemption therefrom and that any book entries representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as applicable securities laws of the ~~Closing Date, by~~ states and ~~among Buyer and~~ other jurisdiction of the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable lawUnited States. The Investor acknowledges and agrees that the Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions~~, and as a result~~, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year from the date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulationsAct. The Investor acknowledges ~~and agrees~~ that it has been advised to consult ~~legal counsel and~~ legal, tax and accounting advisors prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares~~. By making~~ . (c) The Investor acknowledges and agrees that the ~~representations herein~~book-entry position representing the Shares will bear or reflect, as applicable, the ~~Investor does not agree~~ following legend (provided that such legend shall be subject to ~~hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time~~ removal in accordance with ~~or pursuant to a registration statement or an exemption under~~ this Subscription Agreement and the ~~Securities Act~~Registration Rights Agreement): “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (A) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR (B) AN OPINION OF COUNSEL THAT SUCH SALE, OFFER FOR SALE, TRANSFER, PLEDGE OR DISPOSITION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS.” c. (d) The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~the Company. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the ~~Investor~~ Investor, by or on behalf of ~~▇▇▇▇~~the Company and by any control person, officer, director, employee, agents or representative of the Company, ~~the Placement Agents or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing~~ or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ the Company expressly set forth in (i) Section 65 of this Subscription Agreement, or (ii) the Registration Rights Agreement. d. (e) The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including information about the Company, its subsidiaries and their respective businesses. Without limiting the generality of the foregoing, the Investor acknowledges that it has access to the SEC Reports. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. However, neither any such inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on the Company’s representations, warranties, covenants and agreements contained in this Subscription Agreement. (f) The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any form of general solicitation or general advertising in violation of the Securities Act. The Investor acknowledges that, in making its investment decision to purchase the Shares, it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or entity (including, without limitation, the Company, the Placement Agent and any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives), other than the representations and warranties of the Company contained in (i) Section 5 of this Subscription Agreement or (ii) the Registration Rights Agreement. (g) The Investor acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision. The Investor will not look to the Placement Agent for all or part of any such loss or losses the Investor may suffer and is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges that the Investor shall be responsible for any of the Investor’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the Company, nor any of its advisors or representatives, has provided any tax advice or any other representation or guarantee regarding the tax consequences of the transactions contemplated by this Subscription Agreement. (h) Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in the Company. The Investor acknowledges specifically that a possibility of total loss exists. (i) The Investor acknowledges and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. (j) The Investor has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of formation or incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. (k) The execution, delivery and performance by the Investor of this Subscription Agreement and the Registration Rights Agreement are within the corporate powers of the Investor, have been duly authorized and will not constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, and will not violate any provisions of the Investor’s organizational documents. The signature of the Investor on each of this Subscription Agreement and the Registration Rights Agreement is genuine, and the signatory has been duly authorized to execute the same, and, assuming that this Subscription Agreement and the Registration Rights Agreement have been validly executed and delivered by a duly authorized representative of the Company, this Subscription Agreement and the Registration Rights Agreement constitute a legal, valid and binding obligations of the Investor, enforceable against the Investor in accordance with their terms except as may be limited or otherwise affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally. (l) Neither the Investor nor any of its officers or directors or any other person acting in a similar capacity or carrying out a similar function, is (i) a person named on a Sanctions List; (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident, or the government, including any political subdivision, agency, or instrumentality thereof, of Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the non-government controlled areas of Zaporizhzhia and Kherson regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other country or territory embargoed or subject to comprehensive sanctions by the United States, the United Kingdom, the European Union or any individual European Union member state; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R Part 515; or (v) a Prohibited Investor. To the extent required by applicable law, the Investor also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the United Kingdom, the European Union, or any individual European Union member state to the extent applicable to the Investor. The Investor further represents that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor. (m) The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. (n) On the Closing Date, the Investor will have sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement. (o) The Investor further acknowledges ~~and agrees~~ that the Investor has ~~received such information as~~ not relied upon the ~~Investor deems necessary~~ Placement Agent in ~~order to make an investment decision~~ connection with ~~respect to~~ the ~~Shares, including, with respect to ▇▇▇▇,~~ Investor’s due diligence review of the ~~Transactions~~ offering of the Shares and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges and agrees that it has reviewed, or has had an adequate opportunity to review, the SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the SharesCompany. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or by means of contact from the Placement Agents, and the Shares were offered to the Investor by ▇▇▇▇ solely by direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or the Placement Agents. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges and agrees that the Shares (i) were not offered to the Investor by any form of general solicitation or general advertising and (ii) to the Investor’s knowledge without inquiry, are not being offered to the Investor in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges and agrees that it ~~is not relying upon, and~~ has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ▇▇▇▇, the Company or the Placement Agents or any of their respective affiliates or any of its or their control persons, officers, directors, employees, partners, agents or representatives), other than the representations and warranties of ▇▇▇▇ contained in Section 6, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees been informed that the Placement ~~Agents have~~ Agent is acting solely as placement agent in connection with the transactions contemplated by this Subscription Agreement (the “Transaction”) and is not ~~made, do~~ acting as an underwriter or in any other capacity in connection with the Transaction and is not ~~make~~ and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the Transactions. g. The Investor acknowledges and agrees that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Investor is construed as a sophisticated investor and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares. The Investor has sought such accounting, legal and tax advice as fiduciary for the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the ~~purchase by~~ Transaction, (ii) it has not relied on the ~~Investor~~ Placement Agent in connection with its determination as to the legality of its acquisition of the ~~Shares. On behalf of itself and its affiliates~~Shares or as to the other matters referenced herein, ~~the Investor acknowledges and agrees~~ (iii) it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ▇▇▇▇. The Investor acknowledges and agrees specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. The Investor acknowledges and agrees that the Investor has not relied on any ~~statements or other information provided by or on behalf of~~ investigation that the Placement ~~Agents~~ Agent, any of its affiliates or any other person acting on their behalf has conducted with respect to the Shares or the Company or any information contained in any research reports prepared by the Placement Agent or any of ~~their respective~~ its affiliates, ~~control persons~~(iv) the Placement Agent has not made and will not make any representation or warranty, ~~officers~~whether express or implied, ~~directors~~of any kind or character and have not provided any advice, ~~employees~~including without limitation financial advice, ~~partners~~or recommendation in connection with the Transaction, ~~agents or representatives concerning ▇▇▇▇~~in each case, to the ~~Company~~Investor, (v) the ~~Business Combination Agreement,~~ Placement Agent has not solicited any action from the ~~Transactions, this Subscription Agreement, the Investment Transactions, the Shares or~~ Investor with respect to the offer and sale of the Shares~~. Neither~~ , (vi) the Placement ~~Agents~~Agent will have no responsibility to the Investor with respect to (A) any representations, ~~nor~~ warranties or agreements made by any ~~of their respective affiliates nor any control persons, officers, directors, employees, partners, agents~~ person or ~~representatives of~~ entity under or in connection with the Transaction or any of the ~~foregoing~~documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, condition (financial and otherwise), management, operations, properties or prospects of the Company or the Transaction and (vii) the Placement Agent shall have ~~any~~ no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, ~~and~~ or to any person claiming through the ~~Investor releases the Placement Agents~~Investor, in respect of ~~this Subscription Agreement~~the Transaction. The Investor further acknowledges that the Placement Agent is acting as financial advisor to the Company in connection with the Transaction, and that the ~~Investment Transactions or the Transactions~~Placement Agent may receive fees both for their placement agent services and financial advisory services. j. (p) No disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares. (q) The Investor acknowledges ~~and agrees~~ that none of the Placement ~~Agents and their~~ Agent, nor any of its respective affiliates, nor any control persons, officers, directors, ~~employees~~ employees, agents or representatives ~~(i) have not provided~~ of any of the ~~Investor with~~ foregoing has made any ~~information or advice~~ independent investigation with respect to the ~~Shares~~Company or any of their subsidiaries or any of their respective businesses, ~~(ii) have not made~~ or ~~make~~ the Shares or the accuracy, completeness or adequacy of any ~~representation, express or implied as~~ information supplied to ~~▇▇▇▇,~~ the Investor by the Company, ~~the credit quality of ▇▇▇▇~~ and do not make any representation or warranty with respect to the Company, the Shares or the ~~Investor’s purchase~~ accuracy, completeness or adequacy of any information supplied to the ~~Shares,~~ Investor by the Company. (~~iii~~r) ~~have not acted as~~ The Investor acknowledges that (i) the ~~Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv)~~ Placement Agent may have ~~acquired~~ acquired, or may ~~acquire non-public~~ acquire, nonpublic information with respect to ~~▇▇▇▇ or~~ the ~~Company, which, subject~~ Company that is not known to the ~~requirements of applicable law~~Investor and that may be material to a decision to enter into this transaction to purchase Shares (“Excluded Information”), and (ii) the Investor ~~agrees need not be provided~~ has determined to ~~it or (v) may have existing or future business relationships with ▇▇▇▇ or~~ enter into the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate transaction to ~~protect~~ purchase the Shares notwithstanding its ~~or their interests arising therefrom without regard to~~ lack of knowledge of the ~~consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares~~Excluded Information. k. (s) The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state agency, securities commission or similar authority has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. The Investor has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement and the transactions contemplated herein are within the powers of the Investor, have been duly authorized and do not and will not (i) constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii) violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an ~~individual,~~ underwriter within the ~~signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding obligation~~ meaning of ~~▇▇▇▇, this Subscription Agreement constitutes a legal, valid and binding obligation~~ Section 2(a)(11) of the ~~Investor, enforceable against~~ Securities Act and that the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting purchase and sale of Shares hereunder meets the ~~rights of creditors generally, or (ii) principles of equity, whether considered at law or equity~~exemptions from filing under FINRA Rule 5123(b)(1). o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions prog

Appears in 1 contract

Sources: Subscription Agreement (Archer Aviation Inc.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ Ignyte that: a. (a) The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an ~~institutional~~ “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the ~~Shares~~ Securities only for its own account and not for the account of others, or if the Investor is subscribing for the ~~Shares~~ Securities as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) and the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the ~~Shares~~ Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the ~~Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors,~~ Securities and is an “institutional account” as defined in by FINRA Rule 4512(c). b. (b) The Investor acknowledges and agrees that the ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that ~~neither~~ the ~~offer nor the sale of the Shares has~~ Securities have not been registered under the Securities Act ~~or any other applicable securities laws~~and that Ignyte is not required to register the Securities except as set forth in Section 8 of this Subscription Agreement. The Investor acknowledges and agrees that the ~~Shares~~ Securities may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to Ignyte or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to Rule 144 under the Securities Act or another applicable exemption from the registration requirements of the Securities Act, and, in ~~compliance~~ each case, in accordance with any ~~exemption therefrom~~ applicable securities laws of the states of the United States and other applicable jurisdictions, and that any certificates or book entries representing the ~~Shares~~ Securities shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the ~~Shares~~ Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions~~, and as a result~~, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. The Investor acknowledges and agrees that the ~~Shares~~ Securities will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities ~~Act (“~~Act, and that the provisions of Rule ~~144”~~144(i) ~~until at least one year from~~ will apply to the ~~date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations~~Securities. The Investor acknowledges and agrees that it has been advised to consult ~~legal counsel and~~ legal, tax and accounting advisors prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities ActSecurities. c. (c) The Investor acknowledges and agrees that the Investor is purchasing the ~~Shares directly~~ Securities from ~~▇▇▇▇~~Ignyte. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~Ignyte, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees~~, partners~~, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ Ignyte expressly set forth in Section 65 of this Subscription Agreement. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. (d) The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the ~~Shares~~Securities, including, with respect to ~~▇▇▇▇~~Ignyte, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that it has ~~reviewed, or has had an adequate opportunity to review,~~ reviewed ▇▇▇▇▇▇’s filings with the ~~SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and ~~such~~ the Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projectionsSecurities. f. (e) The Investor became aware of this offering of the ~~Shares~~ Securities solely by means of direct contact between the Investor and ~~▇▇▇▇~~Ignyte, the Company or a representative ~~thereof,~~ of Ignyte or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the ~~Shares~~ Securities were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~Ignyte, the Company or a representative ~~thereof,~~ of Ignyte or the ~~Placement Agents~~Company. The Investor did not become aware of this offering of the ~~Shares~~Securities, nor were the ~~Shares~~ Securities offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the ~~Shares~~ Securities (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges that there have not been, and the Investor hereby agrees that it is not relying upon, and has not relied upon, any statement, covenant, agreement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~Ignyte, the ~~Company or the Placement Agents or~~ Company, any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, ~~partners~~agents, ~~agents~~ representatives, legal counsel, financial advisors or ~~representatives~~accountants of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ Ignyte contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsIgnyte. g. (f) The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Securities, including those set forth in Ignyte’s filings with the ~~SEC Reports~~SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Shares. The~~ Securities, and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges ~~and agrees~~ that ~~none of~~ the ~~Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees,~~ Investor shall be ~~liable to the Investor pursuant to this Subscription Agreement~~ responsible for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the ~~Placement Agents for all~~ Investor’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither Ignyte nor the Company has provided any tax advice or any ~~part~~ other representation or guarantee regarding the tax consequences of ~~loss~~ the ~~Investor may suffer~~ transactions contemplated by ~~reason of acquiring~~ the ~~Shares~~Subscription Agreement. h. (g) Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the ~~Shares~~ Securities and determined that the ~~Shares~~ Securities are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~Ignyte. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. (h) In making its decision to purchase the ~~Shares~~Securities, the Investor has relied solely upon independent investigation made by the ~~Investor. The~~ Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the ~~Investor releases the Placement Agents,~~ representations and warranties of Ignyte in ~~respect of this Subscription Agreement, the Investment Transactions or the Transactions~~Section 5. ~~j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives~~ (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Securities or made any findings or determination as to the fairness of this investment. m. (j) The Investor has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. (k) The execution, delivery and performance by the Investor of this Subscription Agreement, the purchase of the Securities hereunder, the compliance by the Investor with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a ~~breach~~ breach, violation or ~~default under or~~ default, conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Investor pursuant to the terms of (a) any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, (b) any indenture, mortgage, deed of trust, loan agreement, lease, license or ~~any~~ other agreement or ~~other~~ undertaking, to which the Investor is a ~~party or~~ party, by which the Investor is ~~bound, except for such breaches, defaults~~ bound or ~~conflicts that would not reasonably be expected~~ to ~~have a material adverse effect on~~ which any of the ~~ability~~ property or assets of the Investor ~~to enter into and timely perform its obligations under this Subscription Agreement~~is subject, and (iic) ~~violate any provisions of~~ if the Investor is not an individual, the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature of the Investor on this Subscription Agreement is genuine, and the ~~signatory, if the Investor is an individual,~~ signatory has legal competence and capacity to execute the same ~~or, if the Investor is not an individual,~~ or the signatory has been duly authorized to execute the same, ~~and~~ and, assuming that this Subscription Agreement constitutes the valid and binding ~~obligation~~ agreement of ~~▇▇▇▇~~Ignyte, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. ~~o. The~~ (l) Neither the Investor nor, if the Investor is not an individual, any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function, is (i) a person ~~or entity~~ named on the ~~List of~~ Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons List, the Foreign Sanctions Evaders ~~List or~~ List, the Sectoral Sanctions Identification List, ~~each~~ or any other similar list of ~~which is~~ sanctioned persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), or in any ~~Executive Order issued~~ similar list of sanctioned persons administered by the ~~President of~~ European Union or any individual European Union member state, including the United ~~States and administered by OFAC~~ Kingdom (collectively, “~~OFAC~~ Sanctions Lists”); (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located or resident, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union or any individual European Union member state, including the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). The Investor represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. The Investor also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the European Union, or any individual European Union member state, including the United Kingdom, to the extent applicable to it. The Investor further represents that the funds held by the Investor and used to purchase the Securities were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor. (m) If the Investor is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws,” and together with ERISA Plans, “Plans”), the Investor represents and warrants that (A) neither Ignyte nor any of its affiliates has provided investment advice or has otherwise acted as the Plan’s fiduciary, with respect to its decision to acquire and hold the Securities, and none of the parties to the Transaction is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with the Investor’s investment in the Securities; and (B) its purchase of the Securities will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, or any applicable Similar Law. (n) The Investor is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or ~~entity prohibited~~ subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244). (o) The Investor has or has commitments to have and, when required to deliver payment to Ignyte pursuant to Section 2 above, will have, sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Securities pursuant to this Subscription Agreement. (p) The Investor acknowledges that Ignyte continues to review the SEC Statement, Redeemable Share Classification Changes and their respective implications, including on the financial statements and other information included in its SEC Reports, and any restatement, revision or other modification of the SEC Reports relating to or arising from such review, any subsequent related agreements or any other guidance from the Staff of the SEC with respect to the SEC Statement or Redeemable Share Classification Changes shall be deemed not material for purposes of this Agreement. (q) No broker or finder is entitled to any brokerage or finder’s fee or commission payable by the Investor solely in connection with the sale of the Securities to the Investor based on any ~~OFAC sanctions prog~~arrangement entered into by or on behalf of the Investor.

Appears in 1 contract

Sources: Subscription Agreement (Ignyte Acquisition Corp.)

Investor Representations and Warranties. I acknowledge, represent and warrant (a) I am aware that my investment involves a high degree of risk and further acknowledge that I can bear the economic risk of the purchase of the Securities, including the total loss of my investment; (b) I am not a “U.S. Person” as such term is defined on Exhibit A; (c) I am not acquiring the Securities for the account or benefit of any U.S. Person; (d) The ~~Investor represents~~ Securities are being purchased by me in an off-shore transaction as defined on Exhibit B; (e) I am acquiring the Securities for investment and ~~warrants~~ without a view to distribution in the United States or to any U.S. Person; (f) I acknowledge that, pursuant to Rule 903 of Regulation S of the Act, I shall not sell or offer for sale any or all of the Securities to a U.S. Person or for the account or benefit of a U.S. Person (other than a distributor) for a period of one year following the closing of the purchase of the Securities, and I shall comply in all respects with U.S. federal and state securities laws, particularly with respect to any resale of the Securities in any transaction subject to U.S. laws. (g) I: _________________ (1) Have carefully read this Subscription Agreement and the Exchange Offer and understand and have evaluated the risks of a purchase of the Securities and have relied solely (except as indicated in subsection (2) and (3)) on the information contained in this Subscription Agreement and the Exchange Offer; (2) Have been provided an opportunity to obtain any additional information concerning the Offering, the Company and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and (3) Have been given the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of the Offering and other matters pertaining to this investment. (h) If the undersigned is a corporation, trust, partnership, employee benefit plan, individual retirement account, ▇▇▇▇▇ ~~that: a. The Investor~~Plan (a retirement plan), or ~~each~~ other tax-exempt entity, it is authorized and qualified to become an investor in the Company and the person signing this Subscription Agreement on behalf of ~~the funds managed~~ such entity has been duly authorized by ~~or affiliated with the Investor for which the Investor is acting as nominee, as applicable,~~ such entity to do so; (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under~~ No representations or warranties have been made to the ~~Securities Act)~~undersigned by the Company, or ~~an institutional “accredited investor”~~ any of their respective officers, employees, agents, affiliates or attorneys; (~~described in Rule 501(a)(1), (2), (3~~j) or (7) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Investor has completed Schedule A following the signature page hereto and the information contained therein is accurate and complete. The Investor is not an entity formed for the specific purpose of acquiring the Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c). b. The Investor acknowledges I acknowledge my understanding that the ~~Shares are being offered in a transaction not involving any public offering within~~ Company’s reliance upon an exemption from the ~~meaning~~ registration requirements of ~~the Securities Act~~ U.S. federal and ~~that neither the offer nor the sale of the Shares has been registered~~ state securities laws under the Securities Act or any other applicable securities laws. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except in compliance with any exemption therefrom and that any book entries representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer restrictions, and as a result, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 Regulation S promulgated under the Securities Act ~~(“Rule 144”) until at least one year from~~ is in part, based upon the date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations. The Investor acknowledges and agrees that it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, pledge, transfer or other disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares directly from ▇▇▇▇. The Investor further acknowledges and agrees that there have been no foregoing representations, warranties, ~~covenants~~ and agreements ~~made to~~ by me and that the ~~Investor by~~ statutory basis for such exemptions would not be present, if, notwithstanding such representations, warranties and agreements, I were a U.S. Person or ~~on behalf of ▇▇▇▇,~~ were acquiring the ~~Company,~~ Securities for the ~~Placement Agents~~ account or ~~any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives~~ benefit of any of U.S. Person. In order to induce the ~~foregoing or any other person or entity~~Company to issue and sell the Securities subscribed for hereby to me, expressly or by implication, other than those representations, warranties, covenants and agreements of ▇▇▇▇ expressly set forth in Section 6. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. The Investor acknowledges and agrees it is agreed that the ~~Investor has received~~ Company will have no obligation to recognize the ownership, beneficial or otherwise, of such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ▇▇▇▇, the Transactions and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges and agrees that it has reviewed, or has had an adequate opportunity to review, the SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or by means of contact from the Placement Agents, and the Shares were offered to the Investor by ▇▇▇▇ solely by direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or the Placement Agents. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges and agrees that the Shares (i) were not offered to the Investor by any form of general solicitation or general advertising and (ii) to the Investor’s knowledge without inquiry, are not being offered to the Investor in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges and agrees that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ▇▇▇▇, the Company or the Placement Agents or any of their respective affiliates or any of its or their control persons, officers, directors, employees, partners, agents or representatives), other than the representations and warranties of ▇▇▇▇ contained in Section 6, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the Transactions. g. The Investor acknowledges and agrees that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Investor is a sophisticated investor and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares. The Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part ~~of loss~~ thereof by anyone, except as set forth herein; (k) I further acknowledge that the ~~Investor may suffer by reason of acquiring~~ certificate evidencing the ~~Shares~~Securities shall have the following legends, in addition to the standard Restricted Securities Legend: THE SECURITIES ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT")) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION S PROMULGATED UNDER THE SECURITIES ACT. TRANSFER OF THESE SECURITIES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT. ~~h. Alone~~(l) I hereby acknowledge and am aware that I am not entitled to cancel, terminate or ~~together with~~ revoke this subscription, and any ~~professional advisor(s)~~agreements made in connection herewith shall survive my death or disability; (m) Where applicable, the Investor has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future I agree to ~~bear the economic risk of a total loss~~ be bound by any restrictions on resale of the Investor’s investment in ▇▇▇▇. The Investor acknowledges and agrees specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made Securities required by the Investor. The Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state agency, securities commission or similar authority has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. The Investor has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement and the transactions contemplated herein are within the powers of the Investor, have been duly authorized and do not and will not (i) constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii) violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding obligation of ▇▇▇▇, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity. o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions prog

Appears in 1 contract

Sources: Subscription Agreement (Propanc Health Group Corp)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ the Company that: a. The ~~Investor~~Investor is a U.S. investor as set forth under its name on the signature page hereto, ~~or each~~ and accordingly represents that, at the time the Investor was offered the Additional Securities, it was, as of the ~~funds managed by or affiliated with~~ date hereof, the Investor ~~for which~~ is, and as of the Closing Date the Investor ~~is acting as nominee, as applicable,~~ will be (ix) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), or an ~~institutional~~ “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7)~~ 501 under the Securities Act), ~~in each case, satisfying the applicable requirements set forth on Schedule A,~~ (iiy) is acquiring the ~~Shares~~ Additional Securities only for its own account and not for the account of others, or if the Investor is subscribing for the ~~Shares~~ Additional Securities as a fiduciary or agent for one or more investor accounts, each owner of each such account is independently a qualified institutional buyer, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account and (~~iii~~z) is not acquiring the ~~Shares~~ Additional Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act or the securities law of any other jurisdiction (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the ~~Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~Additional Securities. b. The Investor acknowledges and agrees that the ~~Shares~~ Additional Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither~~ the offer ~~nor the~~ and sale of ~~the Shares has~~ Additional Securities have not been registered under the Additional Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the ~~Shares~~ Additional Securities may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book ~~entries~~ entry positions representing the ~~Shares~~ Additional Securities shall contain a restrictive legend to such effect. The Investor further acknowledges and agrees that (i) the Subscribed Shares may not be offered, ~~which legend shall be subject to removal as set forth herein and in~~ resold, transferred, pledged or otherwise disposed of by the ~~Stockholders’ Agreement, to be dated as~~ Investor until one year after the date of the ~~Closing Date~~Transaction and (ii) the Preferred Shares may not be offered, resold, transferred, pledged or otherwise disposed of by ~~and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that~~ the Investor ~~is party to~~ until three years after the ~~Stockholders’ Agreement,~~ date of the Transaction in ~~which case, notwithstanding anything else contained herein to~~ accordance with the ~~contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law~~terms of the Certificate of Designation. The Investor acknowledges and agrees that the ~~Shares~~ Additional Securities will be subject to the foregoing transfer ~~restrictions,~~ restrictions and as a ~~result~~result of these transfer restrictions, the Investor may not be able to readily offer, resell, ~~transfer~~pledge, ~~pledge~~ transfer or otherwise dispose of the ~~Shares~~ Additional Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Additional Securities for an indefinite period of time. The Investor acknowledges and agrees that the ~~Shares~~ Additional Securities will not be eligible for resale, offer~~, resale~~, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act ~~(“Rule 144”)~~ until at least one year from the date that ~~▇▇▇▇~~ the Company files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under the applicable SEC rules and regulations. In connection with this Agreement, the Investor agrees to execute a Lock-Up Agreement. The Investor acknowledges and agrees that it has been advised to consult legal counsel ~~and tax and accounting advisors~~ prior to making any offer, resale, ~~pledge,~~ pledge or transfer ~~or other disposition~~ of any of the ~~Shares. By making~~ Additional Securities. c. The Investor acknowledges and agrees that it is aware the ~~representations herein,~~ Additional Securities are being offered under the ~~Investor does not agree to hold any~~ exemption from registration provided by Section 4(a)(2) of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act., Regulation D or Regulation S. c. d. The Investor acknowledges and agrees that the Investor is purchasing the ~~Shares directly~~ Additional Securities from ~~▇▇▇▇~~the Company. The Investor further acknowledges that it is relying exclusively on its own sources of information, investment analysis and ~~agrees~~ due diligence (including professional advice it deems appropriate) with respect to the Transaction, the Additional Securities and the business, condition (financial and otherwise), management, operations, properties and prospects of the Company and Electriq Power, including but not limited to all business, legal, regulatory, accounting, credit and tax matters and that there have been no no, representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇,~~ the Company, ~~the Placement Agents~~ Electriq Power or any of ~~their~~ the respective affiliates or any of the respective subsidiaries, control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇ expressly set forth~~ the Company included in ~~Section 6~~this Agreement. ~~d. The~~ e. Either (1) the Investor’s acquisition and holding of the ~~Shares~~ Additional Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as ~~amended~~amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar ~~law~~law or (2) the Investor is not a Benefit Plan Investor as contemplated by ERISA. e. f. The Investor acknowledges and agrees that the Investor has received and has had an opportunity to review such information as the Investor deems necessary or desirable in order to make an investment decision with respect to the ~~Shares~~Additional Securities, including, without limitation, with respect to ~~▇▇▇▇~~the Company, the ~~Transactions~~ Transaction and the business of ~~the Company~~ Electriq Power and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that it has ~~reviewed, or has had an adequate opportunity to review,~~ reviewed the ~~SEC Reports and other information as~~ Company’s filings with the ~~Investor has deemed necessary to make an investment decision with respect to the Shares~~SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have conducted its own investigation of the Company, the Transactions, and the Additional Securities, received and reviewed the offering materials made available to the Investor and had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and ~~such~~ the Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares, including, but not limited to, access~~ Additional Securities. The Investor further acknowledges that the information provided to ~~marketing materials~~ the Investor may change after the date hereof and ~~a virtual data room containing information about~~ the Company ~~and its financial condition~~is under no obligation to inform the Investor regarding any such changes, ~~results~~ except to the extent such changes would reasonably be expected to cause the failure of ~~operations, business, properties, management and prospects sufficient, in~~ the Company to satisfy a condition to the Investor’s ~~judgment, to enable~~ obligations at the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. Closing. g. The Investor acknowledges and agrees that ~~certain information provided to it by ▇▇▇▇ was~~ the Investor has determined based on ~~good-faith projections,~~ its own independent review and such ~~good-faith projections were prepared based on assumptions~~ professional advice as it has deemed appropriate, that the purchase of the Additional Securities and ~~estimates that~~ participation in the Transaction are ~~inherently uncertain~~ consistent with the Investor’s financial needs, objectives and condition and comply and are ~~subject~~ consistent with all material investment policies, guidelines and other restrictions applicable to ~~a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in~~ the ~~good-faith projections~~Investor. f. h. The Investor became aware of this offering of the ~~Shares~~ Additional Securities solely by means of direct contact between the Investor and ~~▇▇▇▇~~the Company, Electriq Power or a representative of the Company or ~~a representative thereof, or by means of contact from the Placement Agents~~Electriq Power, and the ~~Shares~~ Additional Securities were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~the Company, Electriq Power or a representative of the Company or ~~a representative thereof, or the Placement Agents~~Electriq Power. The Investor did not become aware of this offering of the ~~Shares~~Additional Securities, nor were the ~~Shares~~ Additional Securities offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the ~~Shares~~ Additional Securities (i) were not offered to ~~the Investor~~ it by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered to ~~the Investor~~ it in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~the Company, ~~the Company or the Placement Agents~~ Electriq Power or any of their respective affiliates or any of ~~its or~~ their respective subsidiaries, control persons, officers, directors, employees, partners, agents or representatives), other than the representations and warranties of ~~▇▇▇▇~~ the Company contained in Section 65 of this Agreement, in making its investment or decision to invest in ~~▇▇▇▇. The~~ the Company, and except for the foregoing, the Investor ~~further acknowledges~~ is relying exclusively on its own sources of information, investment analysis and ~~agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty~~ due diligence (including professional advice it deems appropriate) with respect to ~~▇▇▇▇~~the Transaction, the ~~Company~~Additional Securities and the business, ~~this offering or~~ condition (financial and otherwise), management, operations, properties and prospects of the ~~Transactions~~Company and it has independently satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Additional Securities. g. i. The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Additional Securities, including those set forth in the ~~SEC Reports~~Company’s filings with the SEC. The Investor is a sophisticated ~~investor~~ investor, experienced in private equity transactions and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Shares. The~~ Additional Securities, and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment ~~decision,~~ decision and the Investor has made its own assessment and has satisfied itself concerning relevant tax ~~and~~ or other economic considerations relative to its purchase of the ~~Shares~~Additional Securities. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the SharesAdditional Securities. h. j. Alone, or together with any professional advisor(s), the Investor acknowledges that it has reviewed the documents made available to the Investor and has adequately analyzed and fully considered the risks of an investment in the ~~Shares~~ Additional Securities and determined that the ~~Shares~~ Additional Securities are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~the Company. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. k. In making its decision to purchase the ~~Shares~~Additional Securities, the Investor has relied solely upon independent investigation made by the Investor. The Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Additional Securities or made any findings or determination as to the fairness of this investment. m. ~~The~~ If the Investor is not a natural person, the Investor has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this ~~Subscription~~ Agreement. n. The execution, delivery and performance by the Investor of this ~~Subscription~~ Agreement ~~and the transactions contemplated herein~~ are within the powers of the ~~Investor,~~ Investor and have been duly authorized ~~and do~~ (if the Investor is not a natural person) and will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches~~and, ~~defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of~~ if the Investor ~~to enter into and timely perform its obligations under this Subscription Agreement~~is not a natural person, ~~and (ii)~~ will not conflict with or violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this ~~Subscription~~ Agreement is genuine, and ~~the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual,~~ the signatory has been duly authorized to execute the same, and, this Agreement has been duly executed and delivered by the Investor and, assuming that this ~~Subscription~~ Agreement constitutes the valid and binding obligation of ~~▇▇▇▇~~the Company, this ~~Subscription~~ Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity. o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC, ”) or in any Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions ~~prog~~program, (ii) owned, directly or indirectly, or controlled by, or acting on behalf of, one or more persons that are named on the OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national or the government, including any political subdivision, agency or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (each, a “Prohibited Investor”). The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Investor is permitted to do so under applicable law. If the Investor is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, the Investor maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required by applicable law, the Investor maintains policies and procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Additional Securities were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor. p. [Reserved.] q. [Reserved.] r. In connection with the issue and purchase of the Additional Securities, none of the Company, Electriq Power nor any of their respective affiliates have acted as the Investor’s financial advisor or fiduciary. s. [Reserved.] t. The Investor has or has commitments to have, and, when required to deliver payment to the Company pursuant to Section 2 above, will have, sufficient funds to pay the maximum amount of the Total Financing Shortfall and to consummate the purchase and sale of the Additional Securities when required pursuant to this Agreement. u. The Investor acknowledges and agrees that it is not an underwriter within the meaning of Section 2(a)(11) of the Securities Act and that the purchase and sale of Additional Securities hereunder meets the exemptions from fili

Appears in 1 contract

Sources: Securities Purchase Agreement (TLG Acquisition One Corp.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ SVAC and the Placement Agents that: a. The Investor, or each of the funds managed by or affiliated with the Investor for which the Investor is acting as nominee, as applicable, (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for his, her or its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act~~Act (and shall provide the requested information set forth on Schedule A). The Investor ~~has completed Schedule A following~~ acknowledges that this offering of the ~~signature page hereto and~~ Shares meets the ~~information contained therein is accurate and complete~~exemptions from filing under FINRA Rule 5123. The Investor is not an entity formed for the specific purpose of acquiring the ~~Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors,~~ Shares and is an “institutional account” as defined in by FINRA Rule 4512(c). b. The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, ~~transferred, pledged~~ transferred or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to SVAC or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book ~~entries~~ entry positions representing the Shares shall contain a restrictive legend to such ~~effect~~effect and, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer restrictions, and as a result, the Investor may not be able to readily ~~offer, resell, transfer, pledge or otherwise dispose of~~ resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not immediately be eligible for ~~offer, resale, transfer, pledge or disposition~~ resale pursuant to Rule 144 ~~promulgated under~~ of the Securities Act (“Rule 144”) until at least one year from the date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations). The Investor acknowledges ~~and agrees~~ that it has been advised to consult legal counsel ~~and tax and accounting advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or other disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~SVAC. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~SVAC, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ SVAC expressly set forth in Section 65 of this Subscription Agreement. d. The ~~Investor’s acquisition~~ Investor is not, and ~~holding of the Shares will~~ is not ~~constitute or result in a non-exempt prohibited transaction under Section 406~~ acting on behalf of, (i) an “employee benefit plan” subject to Title I of the Employee Retirement Income Security Act of 1974, as ~~amended~~amended (“ERISA”), (ii) an individual retirement account or annuity or other “plan” that is subject to Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), (iii) any entity or account that is deemed under the Department of Labor regulation codified at 29 C.F.R. § 2510.3-101, as modified by Section 3(42) of ERISA, to include the “plan assets” of any “employee benefit plan” subject to ERISA or “plan” subject to Code §4975, or (iv) any ~~applicable~~ other plan subject to non-U.S., state, local or other federal laws or regulations that are substantially similar ~~law~~to the foregoing provisions of ERISA or the Code. e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~SVAC, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that ~~it has reviewed, or has had an adequate opportunity to review, the SEC Reports and other information as~~ the Investor has ~~deemed necessary to make an investment decision with respect to~~ reviewed the ~~Shares~~SEC Reports. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or by means of contact from the Placement Agents, and the Shares were offered to the Investor by ▇▇▇▇ solely by direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or the Placement Agents. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges and agrees that the Shares (i) were not offered to the Investor by any form of general solicitation or general advertising and (ii) to the Investor’s knowledge without inquiry, are not being offered to the Investor in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges and agrees that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ▇▇▇▇, the Company or the Placement Agents or any of their respective affiliates or any of its or their control persons, officers, directors, employees, partners, agents or representatives), other than the representations and warranties of ▇▇▇▇ contained in Section 6, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the Transactions. g. The Investor acknowledges and agrees that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Investor is a sophisticated investor and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares. The Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ▇▇▇▇. The Investor acknowledges and agrees specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. The Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state agency, securities commission or similar authority has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. The Investor has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement and the transactions contemplated herein are within the powers of the Investor, have been duly authorized and do not and will not (i) constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii) violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding obligation of ▇▇▇▇, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity. o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions prog

Appears in 1 contract

Sources: Subscription Agreement (Spring Valley Acquisition Corp.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ the Company that: a. The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) (x) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), a “qualified purchaser” (as defined in Section 2(a)(51) of the Investment Company Act) or an institutional “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, and an “Institutional Account” as defined in FINRA Rule 4512(c) or (y) is an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for his, her or its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act~~Act (and shall provide the requested information set forth on Schedule A). ~~The Investor has completed Schedule A following~~ If a “qualified institutional buyer”, “qualified purchaser” or institutional “accredited investor”, the ~~signature page hereto and the information contained therein is accurate and complete. The~~ Investor is not an entity formed for the specific purpose of acquiring the Shares~~, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~. b. The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to the Company or a Subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book ~~entries~~ entry positions representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer restrictions, and ; as a ~~result,~~ result the Investor may not be able to readily offer, resell~~, transfer~~, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year from the date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulationsAct. The Investor acknowledges and agrees that it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, pledge, transfer or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~the Company. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇,~~ the Company, ~~the Placement Agents~~ Redwire or their respective affiliates or any of their respective ~~affiliates or any~~ Subsidiaries, control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ the Company expressly set forth in ~~Section 6~~this Subscription Agreement. The Investor hereby expressly and irrevocably acknowledges and agrees that he, she or it has not relied on any other representations, warranties or statements (including by omission) and all other purported representations and warranties or statements (including by omission) are hereby disclaimed by the Investor. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. The Investor acknowledges and agrees that the Investor has received and has had an adequate opportunity to review such information as the Investor deems reasonably necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~the Company, the ~~Transactions~~ Transaction and the business of ~~the Company~~ Cosmos and its ~~subsidiaries~~Subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that he, she or it has ~~reviewed, or has had an adequate opportunity to review,~~ reviewed the ~~SEC Reports and other information as~~ Company’s filings with the ~~Investor has deemed necessary to make an investment decision with respect to the Shares~~SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~the Company, Cosmos or its Subsidiaries or a representative of the Company or ~~a representative thereof,~~ Cosmos or by means of contact from ▇▇▇▇▇▇▇▇▇ LLC or its affiliates (the “Placement ~~Agents~~Agent”), and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~the Company, Cosmos or its Subsidiaries or a representative of the Company or ~~a representative thereof,~~ Cosmos or its Subsidiaries or by contact between the Investor and the Placement ~~Agents~~Agent. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~the Company, Cosmos or its Subsidiaries, the ~~Company or the~~ Placement ~~Agents~~ Agent or any of their respective affiliates or any of ~~its or~~ their respective control persons, officers, directors, ~~employees, partners, agents~~ employees or representatives), other than the representations and warranties of ~~▇▇▇▇~~ the Company contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company~~, this offering or the Transactions~~. g. The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the ~~SEC Reports~~Company’s filings with the SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment ~~decision,~~ decision and the Investor has made its own assessment and has satisfied itself concerning relevant tax ~~and~~ or other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~the Company. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. The Investor will not look to the Placement Agent for all or part of any such loss or losses the Investor may suffer. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. ~~The Investor acknowledges and agrees that~~ Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement ~~Agents~~ Agent or any of ~~their respective affiliates, control persons, officers, directors, employees, partners, agents~~ its affiliates or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of ~~their respective affiliates nor any~~ its control persons, officers, directors, employees, partners, agents or representatives of any of the ~~foregoing~~foregoing concerning the Company, ~~shall have any liability~~ Cosmos or ~~obligation (including without limitation~~its Subsidiaries, ~~for or with respect to any losses~~the Transaction, ~~claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by~~ the ~~Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription~~ Merger Agreement, the ~~Investment Transactions~~ Subscription Agreement or the ~~Transactions~~transactions contemplated hereby or thereby, the Shares or the offer and sale of the Shares. j. The Investor acknowledges ~~and agrees~~ that the Placement ~~Agents and their respective affiliates, control persons, officers, directors, employees or representatives~~ Agent (i) ~~have~~ has not provided the Investor with any information or advice with respect to the Shares, (ii) ~~have~~ has not made ~~or make~~ any representation, express or implied as to ~~▇▇▇▇,~~ the Company, Cosmos, Redwire, their credit quality, the ~~credit quality of ▇▇▇▇~~ Shares, the First Merger, the Second Merger or the ~~Company~~other transactions contemplated hereby, ~~the Shares~~ or the Investor’s purchase of the Shares, (iii) ~~have~~ has not acted as the Investor’s financial advisor or fiduciary in connection with the ~~Investment Transactions or the Transactions~~issue and purchase of Shares, (iv) may have ~~acquired~~ acquired, or may ~~acquire~~ acquire, non-public information with respect to ~~▇▇▇▇ or~~ the Company, ~~which~~Redwire, ~~subject to the requirements of applicable law,~~ and Cosmos which the Investor agrees need not be provided to ~~it or~~ it, and (v) may have existing or future business relationships with ~~▇▇▇▇ or~~ Redwire, Cosmos and the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems ~~or they deem~~ necessary or appropriate to protect its ~~or their~~ interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges ~~and agrees~~ that it has not relied on the Placement ~~Agents~~ Agent in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement ~~Agents~~ Agent, any of its affiliates or any person acting on ~~their~~ its behalf have conducted with respect to the Shares, ~~▇▇▇▇~~Redwire, Cosmos or the Company. The Investor further acknowledges ~~and agrees~~ that it has not relied on any information contained in any research reports prepared by the Placement ~~Agents~~Agent or any of its affiliates. l. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. The ~~Investor~~ Investor, if not an individual, has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches~~and, ~~defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of~~ if the Investor ~~to enter into and timely perform its obligations under this Subscription Agreement~~is not an individual, ~~and (ii)~~ will not violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an ~~individual,~~ individual the signatory has been duly authorized to execute the same, ~~and~~ and, assuming that this Subscription Agreement constitutes the valid and binding obligation of ~~▇▇▇▇~~the Company, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity. o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), or in any Executive Order issued by the President of the United States and administered by ~~OFAC~~ OFAC, or any other list of prohibited or restricted parties promulgated by OFAC, the Department of Commerce, or the Department of State (~~collectively,~~ “~~OFAC~~ Sanctions Lists”), or a person or entity prohibited by or restricted under any OFAC sanctions ~~prog~~program, (ii) greater than 50% owned, directly or indirectly, or controlled by, or acting on behalf of, one or more persons that are named on any Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national or the government, including any political subdivision, agency or instrumentality thereof, of, Cuba, Iran, North Korea, Myanmar, Venezuela, Syria, the Crimea region of Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a “Designated National” as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (each a “Prohibited Investor”). The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Investor is permitted to do so under applicable law. If the Investor is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. The Investor maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including Sanctions Lists. The Investor maintains policies and procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor. p. The Investor is not a “foreign person,” “foreign government,” or a “foreign entity,” in each case, as defined in Section 721 of the Defense Production Act of 1950, as amended, including, without limitation, all implementing regulations thereof (the “DPA”). The Investor is not controlled, in whole or in part, by a “foreign person,” as defined in the DPA. [p. No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in the Company as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. .208) over the Company from and after the Closing as a result of the purchase and sale of Shares hereunder.]2 q. The Investor acknowledges that the no disclosure or offering document has been delivered to the Investor by the Placement Agent in connection with the offer and sale of the Shares. r. The Investor acknowledges that neither the Placement Agent nor any of its controlling persons, directors, officers, employees, partners, agents and representatives of any of the foregoing have made any independent investigation with respect to the Company, Cosmos, Redwire or their respective Subsidiaries or the Shares or the accuracy, completeness or adequacy of any in

Appears in 1 contract

Sources: Subscription Agreement (Genesis Park Acquisition Corp.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ SPAC that: a. (a) The Investor, or each of the funds managed by or affiliated with the Investor for which the Investor is acting as nominee, as applicable, (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), or an institutional “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is an “institutional account” (as defined in FINRA Rule 4512(c)), (iii) is acquiring the Shares only for his, her or its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (~~iii~~iv) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the Shares. (b) Notwithstanding anything to the contrary set forth herein, ~~unless such newly formed entity is an entity in which all~~ the Investor acknowledges and agrees that, subsequent to the date of this Subscription Agreement and prior to the Closing, SPAC may enter into one or more additional subscription agreements with additional investors with terms and conditions that are ~~institutional accredited investors~~not materially more advantageous to the investor thereunder than this Subscription Agreement, and ~~is an “institutional account” as defined~~ entry into such agreements may increase the aggregate amount of Shares being subscribed for in ~~FINRA Rule 4512(c)~~the private placement contemplated by this Subscription Agreement. For the avoidance of doubt, such additional agreements shall reflect not less than the same Per Share Purchase Price and shall constitute Other Subscription Agreements for purposes of this Agreement, mutatis mutandis. b. (c) The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees ~~that~~ that, other than with respect to any actions taken to consummate the Transaction pursuant to the BCA, the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to SPAC or an affiliate thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, ~~and as a result~~other than with respect to any actions taken to consummate the Transaction pursuant to the BCA, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees ~~that~~ that, other than with respect to any actions taken to consummate the Transaction pursuant to the BCA, the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year from the date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulationsAct. The Investor acknowledges and agrees that it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. (d) The Investor acknowledges and agrees that the Investor is purchasing the Shares directly from ~~▇▇▇▇~~SPAC. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~SPAC, the Company, the Placement Agents or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ SPAC and the Company expressly set forth in Section 65 and Section 6 of this Subscription Agreement, respectively. d. (e) The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under ~~Section~~ section 406 of the Employee Retirement Income Security Act of 1974, as amended, ~~Section~~ section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. (f) The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~SPAC, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that he, she or it has ~~reviewed, or has had an adequate opportunity to review,~~ reviewed SPAC’s filings with the ~~SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. (g) The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~SPAC, the Company or a representative ~~thereof~~of SPAC or the Company, or by means of contact from any of the Placement ~~Agents~~Agents in their capacity as such, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~SPAC, the Company or a representative ~~thereof~~of SPAC or the Company, or by contact between the Investor and one or more Placement ~~Agents~~Agents in their capacity as such. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered to ~~the Investor~~ it by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) to ~~the Investor’s knowledge without inquiry~~its knowledge, are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~SPAC, the ~~Company or~~ Company, the Placement ~~Agents or~~ Agents, any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, partners, agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ SPAC and the Company contained in Section 65 and Section 6 of this Subscription Agreement, respectively, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsSPAC. g. (h) The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in SPAC’s filings with the ~~SEC Reports~~SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment ~~decision,~~ decision and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. .. The Investor is able to sustain a complete loss on its investment in the Shares~~. The Investor acknowledges and agrees that none of the Placement Agents~~, ~~nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable~~ has no immediate need for liquidity with respect to ~~the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them~~ its investment in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. (i) Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~SPAC. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. (j) In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the ~~Investor~~Investor and SPAC’s and the Company’s representations and warranties expressly set forth in Section 5 and Section 6 of this Subscription Agreement, respectively, and no other representations and warranties of any kind, whether express or implied, of SPAC or any other person. ~~The Investor acknowledges and agrees that~~ Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective ~~affiliates, control persons, officers, directors, employees, partners, agents~~ affiliates or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the ~~foregoing~~foregoing concerning SPAC, ~~shall have any liability~~ the Company, the Transaction, the BCA, this Subscription Agreement or ~~obligation~~ the transactions contemplated hereby or thereby, the Shares or the offer and sale of the Shares. (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the k) The Investor ~~releases~~ acknowledges that the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives : (i) ~~have~~ are each acting solely as the SPAC’s Placement Agent in connection with the transactions contemplated by the Subscription Agreements and is not ~~provided~~ acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for the ~~Investor with any information or advice with respect to the Shares~~Investor, (ii) have not made or make any ~~representation~~representation or warranty, express or ~~implied as to ▇▇▇▇~~implied, of any kind or character and have not provided any advice or recommendation in connection with the ~~Company,~~ transactions contemplated by the ~~credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares~~Subscription Agreements, (iii) will have no responsibility with respect to (a) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) of any thereof, or (b) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the SPAC, the Company or the Transaction, (iv) have not acted as the Investor’s financial advisor or fiduciary in connection with the ~~Investment Transactions or the Transactions~~issue and purchase of Shares, (ivv) may have ~~acquired~~ acquired, or during the term of the Shares may ~~acquire~~ acquire, non-public information with respect to ~~▇▇▇▇ or~~ the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to ~~it or~~ it, (vvi) may have existing or future business relationships with ~~▇▇▇▇ or~~ SPAC and the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares; and (vii) shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor, the Company or any other person or entity), whether in contract, tort or otherwise, to the Investor, or to any person claiming through the Investor, in respect of the Transaction. k. (l) The Investor acknowledges ~~and agrees~~ that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement ~~Agents~~ Agents, any of their affiliates or any person acting on their behalf have conducted with respect to the Shares, ~~▇▇▇▇,~~ SPAC or the Company. The Investor further acknowledges ~~and agrees~~ that it has not relied on any information contained in any research reports prepared by the Placement ~~Agents~~Agents or any of their affiliates. l. (m) The Investor acknowledges that J.▇. ▇▇▇▇▇▇ Securities LLC and SVB Leerink LLC are each acting as financial advisors to the Company (i) in connection with the Transaction and (ii) in connection with the Company’s contemplated acquisition of all issued and outstanding shares of common stock of Immunovant, Inc. not currently owned by the Company (the “Immunovant Acquisition”), as disclosed on Schedule 13D filed on March 8, 2021 by the Company (it being understood and agreed by the Investor that the purchase of the Shares pursuant to this Subscription Agreement on the Closing Date and the closing of the Transaction shall not be contingent on the consummation of the contemplated Immunovant Acquisition). (n) The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. (o) The ~~Investor~~ Investor, if not an individual, has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. (p) The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches~~and, ~~defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of~~ if the Investor ~~to enter into and timely perform its obligations under this Subscription Agreement~~is not an individual, ~~and (ii)~~ will not violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature of the Investor on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, ~~and~~ and, assuming that this Subscription Agreement constitutes the valid and binding obligation of ~~▇▇▇▇~~SPAC, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. o. (q) The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC, ”) or in any Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions ~~prog~~program; (ii) owned, directly or indirectly, or controlled by, or acting on behalf of, one or more persons that are named on the OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national or the government, including any political subdivision, agency or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated

Appears in 1 contract

Sources: Subscription Agreement (Montes Archimedes Acquisition Corp)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ ArcLight that: a. The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for his, her or its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the Shares~~, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~. b. The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to ArcLight or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions~~, and as a result~~, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act ~~(“Rule 144”)~~ until at least one year from the ~~date that ▇▇▇▇ files a Current Report on Form 8-K following the~~ Closing ~~that includes the “Form 10” information required under applicable SEC rules and regulations~~Date. The Investor acknowledges and agrees that it has been advised to consult legal counsel ~~and tax and accounting advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~ArcLight. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~ArcLight, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ ArcLight expressly set forth in Section 65 of this Subscription Agreement. d. ~~The~~ Either (1) the Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as ~~amended~~amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar ~~law~~law or (2) the Investor is not a Benefit Plan Investor as contemplated by ERISA. e. The Investor acknowledges and agrees that the Investor has received and has had an adequate opportunity to review such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~ArcLight, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that he, she or it has ~~reviewed, or has had an adequate opportunity to review,~~ reviewed the SEC ~~Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~Reports. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Investor further acknowledges that the information provided to the Investor may change and ArcLight is under no obligation to inform the Investor regarding any such changes, ~~including, but not limited to, access~~ except to ~~marketing materials and~~ the extent such changes would reasonably be expected to cause the failure of ArcLight to satisfy a ~~virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in~~ condition to the Investor’s ~~judgment, to enable~~ obligations at the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained Closing set forth in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projectionsSection 3(c). f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~ArcLight, the Company or a representative ~~thereof,~~ of ArcLight or ~~by means of contact from~~ the Company (including the Placement Agents), and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~ArcLight, the Company or a representative ~~thereof,~~ of ArcLight or the ~~Placement Agents~~Company. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~ArcLight, the ~~Company or~~ Company, the Placement ~~Agents or~~ Agents, any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, partners, agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ ArcLight contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsArcLight. g. The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in ArcLight’s filings with the ~~SEC Reports~~SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~ArcLight. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. ~~The Investor acknowledges and agrees that~~ Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their ~~respective affiliates, control persons, officers, directors, employees, partners, agents~~ affiliates or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇foregoing concerning ArcLight, the Company, the ~~credit quality of ▇▇▇▇~~ Transaction, the Merger Agreement, this Subscription Agreement or the ~~Company~~transactions contemplated hereby or thereby, the Shares or the ~~Investor’s purchase~~ offer and sale of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. j. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. k. The ~~Investor~~ Investor, if not an individual, has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. l. The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches~~and, ~~defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of~~ if the Investor ~~to enter into and timely perform its obligations under this Subscription Agreement~~is not an individual, ~~and (ii)~~ will not violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, ~~and~~ and, assuming that this Subscription Agreement constitutes the valid and binding ~~obligation~~ agreement of ~~▇▇▇▇~~ArcLight, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. o. m. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC, ”) or in any Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions ~~prog~~program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Investor is permitted to do so under applicable law. If the Investor is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required by applicable law, the Investor maintains policies and procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Shares were legally derived. n. The Investor acknowledges that no disclosure or offering document has been prepared by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Barclays Capital, Inc., Citigroup Global Markets Inc. and BofA Securities, Inc. or any of their affiliates (the “Placement Agents”) in connection with the offer and sale of the Shares. o. Neither the Placement Agents, nor any of their affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing have made any independent investigation with respect to ArcLight, the Company or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by ArcLight. p. In connection with the issue and purchase of the Shares, the Placement Agents have not acted as the Investor’s financial advisor or fiduciary. q. The Investor has or has commitments to have and, when required to deliver payment to ArcLight pursuant to Section 2 above, will have, sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement. r. The Investor acknowledges that the purchase and sale of Shares hereunder meets the exemptions from filing under FINRA Rule 5123(b)(1). s. The Investor acknowledges that the Placement Agents may have acquired, or during the term of the Shares may acquire, non-public information with respect to ArcLight, which the Investor agrees need not be provided to it.

Appears in 1 contract

Sources: Subscription Agreement (ArcLight Clean Transition Corp.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ Atlas that: a. The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule A following the signature page hereto and the information contained therein is accurate and complete. The Investor is not an entity formed for the specific purpose of acquiring the Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(cA). b. The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to Atlas or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer ~~restrictions~~restrictions and, ~~and~~ as a ~~result~~result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be immediately eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act ~~(“Rule 144”)~~ until at least one year from the ~~date that ▇▇▇▇ files a Current Report on Form 8-K following the~~ Closing ~~that includes the “Form 10” information required under applicable SEC rules and regulations~~Date. The Investor acknowledges and agrees that it has been advised to consult legal counsel ~~and tax and accounting advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~Atlas. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~Atlas, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ Atlas expressly set forth in ~~Section 6~~this Subscription Agreement. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~Atlas, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that he, she or it has ~~reviewed, or has had an adequate opportunity to review,~~ reviewed Atlas’s filings with the ~~SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~Atlas, the Company or a representative ~~thereof,~~ of Atlas or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~Atlas, the Company or a representative ~~thereof,~~ of Atlas or the ~~Placement Agents~~Company. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~Atlas, the ~~Company or~~ Company, the Placement Agents or (defined below), any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, partners, agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ Atlas contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsAtlas. g. The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in Atlas’s filings with the ~~SEC Reports~~SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision~~, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares~~. The Investor will not look to the Placement Agents for all or part of any such loss or losses the Investor may suffer and is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~Atlas. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. ~~The Investor acknowledges and agrees that~~ Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective ~~affiliates, control persons, officers, directors, employees, partners, agents~~ affiliates or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the ~~foregoing~~foregoing concerning Atlas, ~~shall have any liability or obligation (including without limitation~~the Company, ~~for or with respect to any losses~~the Transaction, ~~claims~~the Transaction Agreement, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription ~~Agreement~~Agreement or the transactions contemplated hereby or thereby, the ~~Investment Transactions~~ Shares or the ~~Transactions~~offer and sale of the Shares. j. The Investor acknowledges ~~and agrees~~ that the Placement ~~Agents and their respective affiliates, control persons, officers, directors, employees or representatives~~ Agents: (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ~~▇▇▇▇~~Atlas, the Company, the Company’s credit ~~quality of ▇▇▇▇ or the Company~~quality, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the ~~Investment Transactions or the Transactions~~issue and purchase of Shares, (iv) may have ~~acquired~~ acquired, or during the term of the Shares may ~~acquire~~ acquire, non-public information with respect to ~~▇▇▇▇ or~~ the Company, ~~which, subject to the requirements of applicable law,~~ which the Investor agrees need not be provided to ~~it or~~ it, and (v) may have existing or future business relationships with ~~▇▇▇▇ or~~ Atlas and the Company (including, but not limited to, an equity interest in Atlas, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges ~~and agrees~~ that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement ~~Agents~~ Agents, any of their affiliates or any person acting on their behalf have conducted with respect to the Shares, ~~▇▇▇▇,~~ Atlas or the Company. The Investor further acknowledges ~~and agrees~~ that it has not relied on any information contained in any research reports prepared by the Placement ~~Agents~~Agents or any of their affiliates. l. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. The ~~Investor~~ Investor, if not an individual, has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches~~and, ~~defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of~~ if the Investor ~~to enter into and timely perform its obligations under this Subscription Agreement~~is not an individual, ~~and (ii)~~ will not violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature of the Investor on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, ~~and~~ assuming that this Subscription Agreement constitutes the legal, valid and binding obligation of ~~▇▇▇▇~~Atlas, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders ~~List~~ List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), or in any other Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ collectively “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions ~~prog~~program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. If the Investor is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required by applicable law, the Investor maintains policies and procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Shares were legally derived. p. No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in Atlas as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over Atlas from and after the Closing as a result of the purchase and sale of Shares hereunder. q. No disclosure or offering document has been prepared by Moelis & Company LLC or any of their respective affiliates (collectively, the “Placement Agents”) in connection with the offer and sale of the Shares. r. None of the Placement Agents, nor any of its respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing have made any independent investigation with respect to Atlas, the Company or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by Atlas. s. In connection with the issue and purchase of the Shares, none of the Placement Agents have acted as the Investor’s financial advisor or fiduciary. t. The Investor has or has commitments to have and, when required to deliver payment to Atlas pursuant to Section 2 above, will have, sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement.

Appears in 1 contract

Sources: Subscription Agreement (Atlas Crest Investment Corp.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ the Company that: a. (a) The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described~~ as defined in Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the Shares~~, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~. b. (b) The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, and that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in ~~compliance~~ each of clauses (i) and (iii), in accordance with any exemption therefrom and that any book entries representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as applicable securities laws of the ~~Closing Date, by~~ states and ~~among Buyer and~~ other jurisdiction of the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable lawUnited States. The Investor acknowledges and agrees that the Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions~~, and as a result~~, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year from the date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulationsAct. The Investor acknowledges ~~and agrees~~ that it has been advised to consult ~~legal counsel and~~ legal, tax and accounting advisors prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares~~. By making~~ . (c) The Investor acknowledges and agrees that the ~~representations herein~~book-entry position representing the Shares will bear or reflect, as applicable, the ~~Investor does not agree~~ following legend (provided that such legend shall be subject to ~~hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time~~ removal in accordance with ~~or pursuant to a registration statement or an exemption under~~ this Subscription Agreement and the ~~Securities Act~~Registration Rights Agreement): “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (A) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR (B) AN OPINION OF COUNSEL THAT SUCH SALE, OFFER FOR SALE, TRANSFER, PLEDGE OR DISPOSITION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS.” c. (d) The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~the Company. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the ~~Investor~~ Investor, by or on behalf of ~~▇▇▇▇~~the Company and by any control person, officer, director, employee, agents or representative of the Company, ~~the Placement Agents or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing~~ or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ the Company expressly set forth in (i) Section 65 of this Subscription Agreement, or (ii) the Registration Rights Agreement. d. (e) The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including information about the Company, its subsidiaries and their respective businesses. Without limiting the generality of the foregoing, the Investor acknowledges that it has access to the SEC Reports. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. However, neither any such inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on the Company’s representations, warranties, covenants and agreements contained in this Subscription Agreement. (f) The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any form of general solicitation or general advertising in violation of the Securities Act. The Investor acknowledges that, in making its investment decision to purchase the Shares, it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or entity (including, without limitation, the Company, the Placement Agent and any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives), other than the representations and warranties of the Company contained in (i) Section 5 of this Subscription Agreement or (ii) the Registration Rights Agreement. (g) The Investor acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision. The Investor will not look to the Placement Agent for all or part of any such loss or losses the Investor may suffer and is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges that the Investor shall be responsible for any of the Investor’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the Company, nor any of its advisors or representatives, has provided any tax advice or any other representation or guarantee regarding the tax consequences of the transactions contemplated by this Subscription Agreement. (h) Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in the Company. The Investor acknowledges specifically that a possibility of total loss exists. (i) The Investor acknowledges and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. (j) The Investor has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of formation or incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. (k) The execution, delivery and performance by the Investor of this Subscription Agreement and the Registration Rights Agreement are within the corporate powers of the Investor, have been duly authorized and will not constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, and will not violate any provisions of the Investor’s organizational documents. The signature of the Investor on each of this Subscription Agreement and the Registration Rights Agreement is genuine, and the signatory has been duly authorized to execute the same, and, assuming that this Subscription Agreement and the Registration Rights Agreement have been validly executed and delivered by a duly authorized representative of the Company, this Subscription Agreement and the Registration Rights Agreement constitute a legal, valid and binding obligations of the Investor, enforceable against the Investor in accordance with their terms except as may be limited or otherwise affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally. (l) Neither the Investor nor any of its officers or directors or any other person acting in a similar capacity or carrying out a similar function, is (i) a person named on a Sanctions List; (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident, or the government, including any political subdivision, agency, or instrumentality thereof, of Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the non-government controlled areas of Zaporizhzhia and Kherson regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other country or territory embargoed or subject to comprehensive sanctions by the United States, the United Kingdom, the European Union or any individual European Union member state; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R Part 515; or (v) a Prohibited Investor. To the extent required by applicable law, the Investor also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the United Kingdom, the European Union, or any individual European Union member state to the extent applicable to the Investor. The Investor further represents that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor. (m) The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law (n) On the Closing Date, the Investor will have sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement. e. (o) The Investor further acknowledges ~~and agrees~~ that the Investor has ~~received such information as~~ not relied upon the ~~Investor deems necessary~~ Placement Agent in ~~order to make an investment decision~~ connection with ~~respect to~~ the ~~Shares, including, with respect to ▇▇▇▇,~~ Investor’s due diligence review of the ~~Transactions~~ offering of the Shares and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges and agrees that it has reviewed, or has had an adequate opportunity to review, the SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the SharesCompany. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or by means of contact from the Placement Agents, and the Shares were offered to the Investor by ▇▇▇▇ solely by direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or the Placement Agents. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges and agrees that the Shares (i) were not offered to the Investor by any form of general solicitation or general advertising and (ii) to the Investor’s knowledge without inquiry, are not being offered to the Investor in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges and agrees that it ~~is not relying upon, and~~ has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ▇▇▇▇, the Company or the Placement Agents or any of their respective affiliates or any of its or their control persons, officers, directors, employees, partners, agents or representatives), other than the representations and warranties of ▇▇▇▇ contained in Section 6, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees been informed that the Placement ~~Agents have~~ Agent is acting solely as placement agent in connection with the transactions contemplated by this Subscription Agreement (the “Transaction”) and is not ~~made, do~~ acting as an underwriter or in any other capacity in connection with the Transaction and is not ~~make~~ and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the Transactions. g. The Investor acknowledges and agrees that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Investor is construed as a sophisticated investor and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares. The Investor has sought such accounting, legal and tax advice as fiduciary for the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the ~~purchase by~~ Transaction, (ii) it has not relied on the ~~Investor~~ Placement Agent in connection with its determination as to the legality of its acquisition of the ~~Shares. On behalf of itself and its affiliates~~Shares or as to the other matters referenced herein, ~~the Investor acknowledges and agrees~~ (iii) it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ▇▇▇▇. The Investor acknowledges and agrees specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. The Investor acknowledges and agrees that the Investor has not relied on any ~~statements or other information provided by or on behalf of~~ investigation that the Placement ~~Agents~~ Agent, any of its affiliates or any other person acting on their behalf has conducted with respect to the Shares or the Company or any information contained in any research reports prepared by the Placement Agent or any of ~~their respective~~ its affiliates, ~~control persons~~(iv) the Placement Agent has not made and will not make any representation or warranty, ~~officers~~whether express or implied, ~~directors~~of any kind or character and have not provided any advice, ~~employees~~including without limitation financial advice, ~~partners~~or recommendation in connection with the Transaction, ~~agents or representatives concerning ▇▇▇▇~~in each case, to the ~~Company~~Investor, (v) the ~~Business Combination Agreement,~~ Placement Agent has not solicited any action from the ~~Transactions, this Subscription Agreement, the Investment Transactions, the Shares or~~ Investor with respect to the offer and sale of the Shares~~. Neither~~ , (vi) the Placement ~~Agents~~Agent will have no responsibility to the Investor with respect to (A) any representations, ~~nor~~ warranties or agreements made by any ~~of their respective affiliates nor any control persons, officers, directors, employees, partners, agents~~ person or ~~representatives of~~ entity under or in connection with the Transaction or any of the ~~foregoing~~documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, condition (financial and otherwise), management, operations, properties or prospects of the Company or the Transaction and (vii) the Placement Agent shall have ~~any~~ no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, ~~and~~ or to any person claiming through the ~~Investor releases the Placement Agents~~Investor, in respect of ~~this Subscription Agreement~~the Transaction. The Investor further acknowledges that the Placement Agent is acting as financial advisor to the Company in connection with the Transaction, and that the ~~Investment Transactions or the Transactions~~Placement Agent may receive fees both for their placement agent services and financial advisory services. j. (p) No disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares. (q) The Investor acknowledges ~~and agrees~~ that none of the Placement ~~Agents and their~~ Agent, nor any of its respective affiliates, nor any control persons, officers, directors, ~~employees~~ employees, agents or representatives ~~(i) have not provided~~ of any of the ~~Investor with~~ foregoing has made any ~~information or advice~~ independent investigation with respect to the ~~Shares~~Company or any of their subsidiaries or any of their respective businesses, ~~(ii) have not made~~ or ~~make~~ the Shares or the accuracy, completeness or adequacy of any ~~representation, express or implied as~~ information supplied to ~~▇▇▇▇,~~ the Investor by the Company, ~~the credit quality of ▇▇▇▇~~ and do not make any representation or warranty with respect to the Company, the Shares or the ~~Investor’s purchase~~ accuracy, completeness or adequacy of any information supplied to the ~~Shares,~~ Investor by the Company. (~~iii~~r) ~~have not acted as~~ The Investor acknowledges that (i) the ~~Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv)~~ Placement Agent may have ~~acquired~~ acquired, or may ~~acquire non-public~~ acquire, nonpublic information with respect to ~~▇▇▇▇ or~~ the ~~Company, which, subject~~ Company that is not known to the ~~requirements of applicable law~~Investor and that may be material to a decision to enter into this transaction to purchase Shares (“Excluded Information”), and (ii) the Investor ~~agrees need not be provided~~ has determined to ~~it or (v) may have existing or future business relationships with ▇▇▇▇ or~~ enter into the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate transaction to ~~protect~~ purchase the Shares notwithstanding its ~~or their interests arising therefrom without regard to~~ lack of knowledge of the ~~consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares~~Excluded Information. k. (s) The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state agency, securities commission or similar authority has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. The Investor has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement and the transactions contemplated herein are within the powers of the Investor, have been duly authorized and do not and will not (i) constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii) violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an ~~individual,~~ underwriter within the ~~signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding obligation~~ meaning of ~~▇▇▇▇, this Subscription Agreement constitutes a legal, valid and binding obligation~~ Section 2(a)(11) of the ~~Investor, enforceable against~~ Securities Act and that the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting purchase and sale of Shares hereunder meets the ~~rights of creditors generally, or (ii) principles of equity, whether considered at law or equity~~exemptions from filing under FINRA Rule 5123(b)(1). o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions prog

Appears in 1 contract

Sources: Subscription Agreement (Archer Aviation Inc.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ Dragoneer that: a. The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for his, her or its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the Shares~~, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~. b. The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to Dragoneer or a subsidiary thereof, (ii) in ~~compliance~~ an “off-shore transaction” within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer ~~restrictions~~restrictions and, ~~and~~ as a ~~result~~result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act ~~(“Rule 144”)~~ until at least one year from the date that ~~▇▇▇▇~~ Dragoneer files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under applicable SEC rules and regulations. The Investor shall not engage in hedging transactions with regard to the Shares unless in compliance with the Securities Act. The Investor acknowledges and agrees that it has been advised to consult legal counsel ~~and tax and accounting advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~Dragoneer. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~Dragoneer, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ Dragoneer expressly set forth in ~~Section 6~~this Subscription Agreement. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~Dragoneer, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that he, she or it has ~~reviewed, or has~~ had ~~an adequate~~ the opportunity to ~~review,~~ review the SEC ~~Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~Reports. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges that as part of the Transaction Dragoneeer is expected to file a registration statement under the Securities Act, including a preliminary prospectus and ~~agrees that certain~~ proxy statement (the “Transaction Proxy”), which will contain additional information ~~provided~~ about the Transaction and the Company which the Investor will not have the opportunity to ~~it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject~~ review prior to ~~a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections~~entering this Subscription Agreement. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~Dragoneer, the Company or a representative ~~thereof,~~ of Dragoneer or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~Dragoneer, the Company or a representative ~~thereof,~~ of Dragoneer or the ~~Placement Agents~~Company. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges that Dragoneer represents and ~~agrees~~ warrants that the Shares ~~(i)~~ were not offered ~~to the Investor~~ by any form of ~~general solicitation or general~~ advertising ~~and (ii)~~ or, to ~~the~~ Investor’s ~~knowledge without inquiry~~knowledge, ~~are not being offered to the Investor in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws~~general solicitation. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~Dragoneer, the ~~Company or~~ Company, the Placement ~~Agents or~~ Agent (defined below), any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, partners, agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ Dragoneer contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsDragoneer. g. The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in Dragoneer’s filings with the SEC ~~Reports~~and which will be more fully set forth in the Transaction Proxy. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ▇▇▇▇. The Investor acknowledges and agrees specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. The Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state agency, securities commission or similar authority has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. The Investor has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement and the transactions contemplated herein are within the powers of the Investor, have been duly authorized and do not and will not (i) constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii) violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding obligation of ▇▇▇▇, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity. o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions prog

Appears in 1 contract

Sources: Business Combination Agreement (Dragoneer Growth Opportunities Corp.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ SVAC and the Placement Agents that: a. The Investor, or each of the funds managed by or affiliated with the Investor for which the Investor is acting as nominee, as applicable, (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act~~Act (“Rule 144A”)), or an ~~institutional~~ “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for his, her or its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act~~Act (and shall provide the requested information set forth on Schedule A). The Investor ~~has completed Schedule A following~~ acknowledges that this offering of the ~~signature page hereto and~~ Shares meets the ~~information contained therein is accurate and complete~~exemptions from filing under FINRA Rule 5123. The Investor is not an entity formed for the specific purpose of acquiring the Shares, unless such newly formed entity is an entity in which all of the ~~investors~~ equity owners are ~~institutional~~ “accredited investors~~, and is an “institutional account~~” ~~as defined in FINRA~~ (within the meaning of Rule ~~4512(c~~501(a) under the Securities Act). b. The Investor acknowledges that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, ~~transferred, pledged~~ transferred or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to SVAC or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any book ~~entries~~ entry positions representing the Shares shall contain a restrictive legend to such ~~effect~~effect (provided, ~~which~~ that such legend shall be subject to removal ~~as set forth herein and~~ in ~~the Stockholders’ Agreement~~accordance with Section 8.c)) and, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer restrictions, and as a result, the Investor may not be able to readily ~~offer, resell, transfer, pledge or otherwise dispose of~~ resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares ~~will~~ may not immediately be eligible for ~~offer, resale, transfer, pledge or disposition~~ resale pursuant to Rule ~~144 promulgated under the Securities Act (“Rule~~ 144”) until at least one year from the date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations. The Investor acknowledges ~~and agrees~~ that it has been advised to consult legal counsel ~~and tax and accounting advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or other disposition of any of the Shares. ~~By making the representations herein, the~~ Nothing contained herein shall be deemed a representation or warranty by such Investor ~~does not agree~~ to hold ~~any of~~ the Shares for any ~~minimum or specific term and reserves the right to assign, transfer or otherwise dispose~~ period of ~~any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act~~time. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~SVAC. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~SVAC, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ SVAC expressly set forth in Section 65. d. The ~~Investor’s acquisition~~ Investor is not, and ~~holding of the Shares will~~ is not ~~constitute or result in a non-exempt prohibited transaction under Section 406~~ acting on behalf of, (i) an “employee benefit plan” subject to Title I of the Employee Retirement Income Security Act of 1974, as ~~amended~~amended (“ERISA”), (ii) an individual retirement account or annuity or other “plan” that is subject to Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), (iii) any entity or account that is deemed under the Department of Labor regulation codified at 29 C.F.R. § 2510.3-101, as modified by Section 3(42) of ERISA, to include the “plan assets” of any “employee benefit plan” subject to ERISA or “plan” subject to Code §4975, or (iv) any ~~applicable~~ other plan subject to non-U.S., state, local or other federal laws or regulations that are substantially similar ~~law~~to the foregoing provisions of ERISA or the Code. e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~SVAC, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that ~~it has reviewed, or~~ the Investor has had an ~~adequate~~ opportunity to ~~review,~~ review the SEC ~~Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~Reports. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~SVAC, the Company or a representative ~~thereof,~~ of SVAC or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~SVAC, the Company or a representative ~~thereof,~~ of SVAC or the ~~Placement Agents~~Company. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered to the Investor by ~~any~~ a form of general solicitation or general advertising and (ii) to the Investor’s ~~knowledge without inquiry~~knowledge, are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act,~~ Act or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~SVAC, the ~~Company or~~ Company, the Placement ~~Agents or~~ Agents, any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, partners, agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ SVAC contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsSVAC. g. The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Investor is a sophisticated investor and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision~~, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares~~. The Investor (i) will not look to the Placement Agents for all or part of any such loss or losses the Investor may suffer, is able to sustain a complete loss on its investment in the ~~Shares. The~~ Shares and (ii) acknowledges that the Investor ~~acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees,~~ shall be ~~liable to the Investor pursuant to this Subscription Agreement~~ responsible for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the ~~Placement Agents for all~~ Investor’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither SVAC nor the Company has provided any tax advice or any ~~part~~ other representation or guarantee regarding the tax consequences of ~~loss~~ the ~~Investor may suffer~~ transactions contemplated by ~~reason of acquiring the Shares~~this Subscription Agreement. h. Alone, or together with any professional advisor(s), the Investor has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~SVAC. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor, the SEC Reports and SVAC’s representations and warranties in Section 5. ~~The Investor acknowledges and agrees that~~ Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective ~~affiliates, control persons, officers, directors, employees, partners, agents~~ affiliates or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the ~~foregoing~~foregoing concerning SVAC, ~~shall have any liability or obligation (including without limitation~~the Company, ~~for or with respect to any losses~~the Transaction, ~~claims~~the Transaction Agreement, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription ~~Agreement~~Agreement or the transactions contemplated hereby or thereby, the ~~Investment Transactions~~ Shares or the ~~Transactions~~offer and sale of the Shares. j. The Investor acknowledges ~~and agrees~~ that the Placement ~~Agents and their respective affiliates, control persons, officers, directors, employees or representatives~~ Agents: (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ~~▇▇▇▇~~SVAC, the Company, the Company’s credit ~~quality of ▇▇▇▇ or the Company~~quality, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the ~~Investment Transactions or the Transactions~~issue and purchase of Shares, (iv) may have ~~acquired~~ acquired, or during the term of the Shares may ~~acquire~~ acquire, non-public information with respect to ~~▇▇▇▇ or~~ the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to ~~it or~~ it, and (v) may have existing or future business relationships with ~~▇▇▇▇ or~~ SVAC and the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. l. The ~~Investor~~ Investor, if not an individual, has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. m. The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized ~~and do not~~ and will not (i) constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement and, ~~and~~ (ii) if the Investor is not an individual, will not violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, ~~and~~ and, assuming that this Subscription Agreement constitutes the valid and binding obligation of ~~▇▇▇▇~~SVAC, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. o. n. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by ~~OFAC,~~ the OFAC or in any ~~Executive Order issued by the President of the United States and administered by~~ OFAC ~~(collectively, “OFAC Lists”)~~List, or a person or entity prohibited by any OFAC sanctions ~~prog~~program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (each, a “Prohibited Investor”). The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Investor is permitted to do so under applicable law. If the Investor is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required by applicable law, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required by applicable law, the Investor maintains policies and procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor. o. The Investor acknowledges and agrees that it has been informed that no disclosure or offering document has been prepared by any Placement Agent in connection with the offer and sale of the Shares. p. The Investor acknowledges that neither the Placement Agents, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing have made any independent investigation with respect to SVAC, the Company or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by SVAC. q. At the Closing, the Investor will have sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement. r. Neither the due diligence investigation conducted by the Investor in connection with making its decision to acquire the Shares nor any representations or warranties made by the Investor in this Subscription Agreement shall modify, amend or affect the Investor’s right to rely on the truth, accuracy and completeness of SVAC’s representations and warranties contained in this Subscription Agreement, subject to the terms hereof. s. The Investor acknowledges and agrees that the Placement Agents are not making a recommendation to Investor to participate in the offer and sale of the Shares, and nothing set forth in any disclosure or documents that may be provided to Investor from time to time is intended to suggest that the Placement Agents are making such a recommendation. t. The Investor hereby acknowledges and agrees that, from the date of this Subscription Agreement, that it will not, nor will any person acting at the Investor’s direction or pursuant to any understanding with the Investor, engage in any Short Sales with respect to securities of SVAC prior to the Closing (or the termination of this Subscription Agreement, if earlier). “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act. Notwithstanding the foregoing, (i) nothing herein shall prohibit other entities under common management with the Investor that have no knowledge of this Subscription Agreement or of the Investor’s participation in the subscription (including the Investor’s controlled affiliates and/or aff

Appears in 1 contract

Sources: Subscription Agreement (Spring Valley Acquisition Corp.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ SCS that: a. (a) The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an ~~institutional~~ “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule AA hereto, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act~~Act (and shall provide the requested information set forth on Schedule A hereto). The Investor, if such Investor ~~has completed Schedule A following the signature page hereto and the information contained therein~~ is ~~accurate and complete. The Investor~~ not a natural person, is not an entity formed for the specific purpose of acquiring the ~~Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors,~~ Shares and is an “institutional account” as defined in by FINRA Rule 4512(c)) of an investment adviser to which the Investor has delegated investment decision making authority. The Investor, or its investment adviser, as applicable, is aware that the sale of the Shares is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring the Shares for the Investor’s own account or for an account over which it exercises sole discretion for another qualified institutional buyer or accredited investor. b. (b) The ~~Investor~~ Investor, or its investment adviser, as applicable, acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities Act ~~or any other applicable securities laws~~and that SCS is not required to register the Shares except as set forth in Section 8 of this Subscription Agreement. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to SCS or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in ~~compliance~~ each case, in accordance with any ~~exemption therefrom~~ applicable securities laws of the states of the United States and other applicable jurisdictions, and that any certificates or book entries representing the Shares shall contain a restrictive legend to such ~~effect, which~~ effect (provided that such legend ~~shall~~ may be subject to removal ~~as set forth herein and~~ in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, accordance with Section ~~8 hereof shall not apply and not be effective with respect to such Investor~~8(d)~~, subject to applicable law~~). The ~~Investor~~ Investor, or its investment adviser, as applicable, acknowledges and agrees that the Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions~~, and as a result~~, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The ~~Investor~~ Investor, or its investment adviser, as applicable, acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities ~~Act (“~~Act, and that the provisions of Rule ~~144”~~144(i) ~~until at least one year from~~ will apply to the ~~date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations~~Shares. The Investor acknowledges and agrees that it has been advised to consult ~~legal counsel and~~ legal, tax and accounting ~~advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. (c) The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~SCS, and that SCS, the Company, and/or the Placement Agents and/or their respective affiliates may now or in the future own securities of SCS and may purchase Shares. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~SCS, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees~~, partners~~, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ SCS expressly set forth in Section 65 of this Subscription Agreement. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. (d) The Investor acknowledges and agrees that the Investor has received or had access to such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~SCS, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. The Investor acknowledges that Investor has consulted with its own legal, accounting, financial, regulatory, and tax advisors, to the extent deemed appropriate. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that it has ~~reviewed, or has~~ had ~~an adequate~~ the opportunity to ~~review,~~ review SCS’s filings with the ~~SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the opportunity to review financial and other information as it deemed necessary to make its decision, and ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. . (e) The Investor acknowledges ~~and agrees~~ that certain information provided to ~~it by ▇▇▇▇~~ the Investor was based on ~~good-faith~~ projections, and such ~~good-faith~~ projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the ~~good-faith~~ projections. The Investor acknowledges that such information and projections were prepared without the participation of the Placement Agents and that the Placement Agents, SCS and the Company do not assume responsibility for independent verification of, or the accuracy or completeness of, such information or projections. f. (f) The ~~Investor~~ Investor, or its investment adviser, as applicable, became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~SCS, the Company or a representative ~~thereof,~~ of SCS or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~SCS, the Company or a representative ~~thereof~~of SCS or the Company. The Investor, or ~~the Placement Agents. The Investor~~ its investment adviser, as applicable, did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The ~~Investor~~ Investor, or its investment adviser, as applicable, acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~SCS, the ~~Company or~~ Company, the Placement ~~Agents or~~ Agents, any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, ~~partners,~~ agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ SCS contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsSCS. g. (g) The ~~Investor~~ Investor, or its investment adviser, as applicable, acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in SCS’s filings with the ~~SEC Reports~~SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges ~~and agrees~~ that ~~none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees,~~ Investor shall be ~~liable to the Investor pursuant to this Subscription Agreement~~ responsible for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the ~~Placement Agents for all~~ Investor’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither SCS nor the Company has provided any tax advice or any ~~part~~ other representation or guarantee regarding the tax consequences of ~~loss~~ the ~~Investor may suffer~~ transactions contemplated by ~~reason of acquiring~~ the ~~Shares~~Subscription Agreement. h. (h) Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~SCS. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. (i) In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the ~~Investor~~Investor and the representations and warranties of SCS in Section 5. ~~The Investor acknowledges and agrees that~~ Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective ~~affiliates,~~ affiliates or any control persons, officers, directors, employees, ~~partners,~~ agents or representatives of any of the foregoing concerning ~~▇▇▇▇~~SCS, the Company, the ~~Business Combination Agreement~~Transaction, the ~~Transactions~~Transaction Agreement, this Subscription ~~Agreement,~~ Agreement or the ~~Investment Transactions~~transactions contemplated hereby or thereby, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. ~~j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives~~ (ij) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. (k) The Investor has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. (l) The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches, defaults or conflicts that would~~ and will not ~~reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii)~~ violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature of the Investor on this Subscription Agreement is genuine, and the ~~signatory, if the Investor is an individual,~~ signatory has legal competence and capacity to execute the same ~~or, if the Investor is not an individual,~~ or the signatory has been duly authorized to execute the same, ~~and~~ and, assuming that this Subscription Agreement constitutes the valid and binding ~~obligation~~ agreement of ~~▇▇▇▇~~SCS, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. ~~o. The~~ (m) Neither the Investor ~~is not~~ nor any of its officers, directors, managers, managing members, general partners, subsidiaries, affiliates, or, to the Investor’s knowledge, the Investor’s agents or representatives acting on their behalf in connection with this Agreement is: (i) a person ~~or entity~~ named on the ~~List of~~ Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons List, the Foreign Sanctions Evaders ~~List or~~ List, the Sectoral Sanctions Identification List, ~~each~~ or any other similar list of ~~which is~~ sanctioned persons administered by ~~OFAC~~the U.S. Treasury Department’s Office of Foreign Assets Control, or in any ~~Executive Order issued~~ similar list of sanctioned persons administered by the ~~President of~~ European Union, any individual European Union member state or the United ~~States and administered by OFAC~~ Kingdom (collectively, “~~OFAC~~ Sanctions Lists”); (ii) directly or indirectly 50% or more owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory that is the subject of comprehensive trade restrictions by the United States, the European Union, any individual European Union member state or the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or, to the Investor’s knowledge, providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). The Investor represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. The Investor also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the European Union, any individual European Union member state or the United Kingdom, to the extent applicable to it. The Investor further represents that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor. (n) If the Investor is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) an employee benefit plan that is a ~~person~~ governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or ~~entity~~ other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws,” and together with ERISA Plans, “Plans”), the Investor represents and warrants that (A) neither SCS nor any of its affiliates has provided investment advice or has otherwise acted as the Plan’s fiduciary, with respect to its decision to acquire and hold the Shares, and none of the parties to the Transaction is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with the Investor’s investment in the Shares; and (B) its purchase of the Shares will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, or any applicable Similar Law. (o) No disclosure or offering document has been prepared by Citigroup Global Markets Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, ▇▇▇▇▇▇▇▇▇ LLC, Evercore Group LLC, and UBS Securities LLC (collectively, the “Placement Agents”) or any ~~OFAC sanctions prog~~of their respective affiliates in connection with the offer and sale of the Shares. (p) None of the Placement Agents, nor any of their respective affiliates, nor any control persons, officers, directors, employees, agents or representatives of any of t

Appears in 1 contract

Sources: Subscription Agreement (Social Capital Suvretta Holdings Corp. III)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ Issuer that: a. The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is ~~a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), or~~ an ~~institutional~~ “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act)~~, in each case~~, satisfying the applicable requirements set forth on Schedule AA hereto, (ii) is acquiring the Shares only for ~~its~~ its, his or her own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account others and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act~~Act or any securities laws of the United States or any other jurisdiction. The Investor has completed Schedule A following the signature page hereto and the information contained therein is accurate and complete. The Investor further acknowledges that it, he or she is ~~not an entity formed for~~ aware that the ~~specific purpose of~~ sale to it, him or her is being made in reliance on a private placement exempt from registration under the Securities Act and is acquiring the ~~Shares~~Shares for its, ~~unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional~~ his or her own account~~” as defined in FINRA Rule 4512(c)~~. b. [Reserved.] c. The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither~~ the offer ~~nor the~~ and sale of the Shares ~~has~~ have not been registered under the Securities Act or any other applicable securities laws. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except in compliance with any exemption ~~therefrom~~ therefrom, and that any book entries representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor)herein, subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer ~~restrictions~~restrictions and, ~~and~~ as a ~~result~~result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act ~~(“Rule 144”)~~ until at least one year from the date that ~~▇▇▇▇~~ Issuer files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations. The Investor acknowledges and agrees that it it, he or she has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. d. The Investor acknowledges and agrees that the Investor is purchasing the Shares directly from ~~▇▇▇▇~~Issuer. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of Issuer, the Company, and Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇▇ Sachs & Co. LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and Citigroup Global Markets Inc. (collectively, the ~~Company~~“Placement Agents”), ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ Issuer expressly set forth in Section 66 of this Subscription Agreement. d. e. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. f. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~Issuer, the ~~Transactions~~ Transaction and the business of the Company and its direct and indirect subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that it it, he or she has ~~reviewed, or has had an adequate opportunity to review,~~ reviewed the SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, including from the Company directly, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, ~~including,~~ including but not limited ~~to,~~ to access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate ~~its~~ its, his or her investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges ~~and agrees~~ that certain information provided ~~to it~~ by ~~▇▇▇▇~~ the Company was based on ~~good-faith~~ projections, and such ~~good-faith~~ projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the ~~good-faith~~ projections. The Investor further acknowledges that it, he or she has reviewed or had the full opportunity to review all disclosure documents provided to such Investor in the offering of the Shares and no statement or printed material which is contrary to such disclosure documents has been made or given to the Investor by or on behalf of Issuer or Company. Based on such information as the Investor has deemed appropriate and without reliance upon the Placement Agents, the Investor has independently made its, his or her own analysis and decision to enter into the Transaction. Except for the representations, warranties and agreements of the Issuer expressly set forth in any Subscription Agreement, the Investor is relying exclusively on its, his or her own sources of information, investment analysis and due diligence (including professional advice it, he or she deemed appropriate) with respect to the Transaction, the Securities and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. f. g. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~Issuer, the Company or a representative ~~thereof,~~ of Issuer or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~Issuer, the Company or a representative ~~thereof,~~ of Issuer or the ~~Placement Agents~~Company. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other ~~means,~~ means and none of ~~▇▇▇▇~~Issuer, ~~the Company, the Placement Agents~~ Company or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it it, he or she is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~Issuer, the ~~Company or the Placement Agents or~~ Company, any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, partners, agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ Issuer contained in Section 65 of this Subscription Agreement, in making ~~its~~ its, his or her investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsIssuer. g. h. The Investor acknowledges ~~and agrees~~ that it it, he or she is aware that there are substantial risks incident to the purchase and ownership of the Shares, including but not limited to those set forth in the SEC Reports. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment ~~decision,~~ decision and the Investor has made ~~its~~ its, his or her own assessment and has satisfied ~~itself~~ itself, himself or herself concerning relevant tax and other economic considerations relative to ~~its~~ its, his or her purchase of the Shares. The Investor will not look to the Placement Agents for all or part of any such loss or losses the Investor may suffer, is able to sustain a complete loss on ~~its~~ its, his or her investment in the Shares~~. The Investor acknowledges~~ , has no need for liquidity with respect to its, his or her investment in the Shares and ~~agrees that none~~ has no reason to anticipate any change in circumstances, financial or otherwise, which may cause or require any sale or distribution of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of ~~loss the Investor may suffer by reason of acquiring~~ the Shares. h. i. Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~Issuer. The Investor has determined based on its, his or her own independent review and such professional advice as the Investor deemed appropriate that its, his or her purchase of the Securities and participation in the Transaction are fully consistent with its, his or her financial needs, objectives and condition and is a suitable investment for the Investor, notwithstanding the risks inherent in investing in or holding the Securities. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. ~~i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor.~~ j. The Investor hereby acknowledges and agrees that ~~the Investor has not relied on any statements or other information provided by or on behalf of~~ (a) the Placement Agents are acting solely as placement agents in connection with the Transaction and are not acting as underwriters or in any other capacity and are not and shall not be construed as a fiduciary for the Investor, the Company or any other person or entity in connection with the Transaction, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transaction, (c) the Placement Agents will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of ~~their respective affiliates~~the documents furnished pursuant thereto or in connection therewith, ~~control persons~~or the execution, ~~officers~~legality, ~~directors~~validity or enforceability (with respect to any person) or any thereof, ~~employees~~or (ii) the business, ~~partners~~condition (financial or otherwise), ~~agents~~ operations, properties or ~~representatives~~ prospects of, or any other matter concerning ~~▇▇▇▇,~~ the Company, the ~~Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares~~ Target or the ~~offer~~ Transaction, and ~~sale of the Shares. Neither~~ (d) the Placement ~~Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing,~~ Agents shall have ~~any~~ no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor, the Company or any other person or entity), whether in contract, tort or otherwise, to the Investor, ~~and~~ or to any person claiming through the ~~Investor releases the Placement Agents~~Investor, in respect of ~~this Subscription Agreement~~the Transaction. In making its, his or her decision to purchase the Shares, the ~~Investment Transactions~~ Investor has relied solely upon independent investigation made by the Investor. Without limiting the generality of the foregoing, the Investor has not relied on any statements or ~~the Transactions. j. The Investor acknowledges and agrees that~~ other information provided by or on behalf of the Placement Agents ~~and~~ or any of their respective ~~affiliates,~~ affiliates or any control persons, officers, directors, ~~employees~~ employees, partners, agents or representatives ~~(i) have not provided~~ of any of the ~~Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇~~foregoing concerning Issuer, the Company, the ~~credit quality of ▇▇▇▇~~ Transaction, the Business Combination Agreement, this Subscription Agreement or the ~~Company~~transactions contemplated hereby or thereby, the Shares or the ~~Investor’s purchase~~ offer and sale of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. l. The Investor has ~~been duly formed or incorporated~~ full power, right and ~~is validly existing~~ legal capacity to execute and ~~in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into,~~ deliver ~~and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of~~ this Subscription Agreement and ~~the transactions contemplated herein are within the powers of~~ to perform its, his or her obligations hereunder. m. This Subscription Agreement has been duly authorized, executed and delivered by the Investor, have been duly authorized and do not and will not (i) constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii) violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. ~~The signature on this~~ This Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding obligation of ▇▇▇▇, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its ~~terms~~ terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. o. n. The Investor is not (i) a person ~~or entity~~ named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders ~~List~~ List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC~~, or in any Executive Order issued by the President of the United States and administered by OFAC~~ ”) (collectively, “OFAC Lists”), (ii) acting on behalf of one or more persons that are named on the OFAC Lists; (iii) located, resident or born in, or a ~~person~~ citizen or ~~entity prohibited~~ national of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States or (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 (each, a “Prohibited Investor”). The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Investor is permitted to do so under applicable law. The Investor also represents that, to the extent required, it, he or she maintains procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs. The Investor further represents and warrants that, to the extent required by applicable law, the Investor maintains procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor. o. The Investor acknowledges that neither the Placement Agents, nor any ~~OFAC sanctions prog~~of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing have made any independent investigation with respect to Issuer, the Company or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by Issuer. p. In connection with the issue and purchase of the Shares, the Placement Agents have not acted as the Investor’s financial advisor or fiduciary. q. The Investor acknowledges that it, he or she is aware that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC and ▇.▇. ▇▇▇▇▇▇ Securities LLC are acting as financial advisors to the Company in connection with the Transaction. r. The Investor has and, when required to deliver payment to Issuer pursuant to Section 2 above, will have, sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement. s. As of the date hereof, the Investor does not have, and during the thirty (30) day period immediately prior to the date hereof the Investor has not entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under the Exchange Act or short sale positions with respect to the securities of Issuer. t. The Investor is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchan

Appears in 1 contract

Sources: Subscription Agreement (CC Neuberger Principal Holdings II)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ SPAC that: a. The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an ~~institutional~~ “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3~~501(a) ~~or (7)~~ of Regulation D under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule AA hereto, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account others and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act~~Act or any securities laws of the United States or any other jurisdiction. The Investor has completed Schedule A following the signature page hereto and the information contained therein is accurate and complete. The Investor is not an entity formed for the specific purpose of acquiring the Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, . The Investor further acknowledges that it is aware that the sale to it is being made in reliance on a private placement exempt from registration under the Securities Act and is ~~an “institutional~~ acquiring the Shares for its, his or her own account~~” as defined in FINRA Rule 4512(c)~~. b. The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither~~ the offer ~~nor the~~ and sale of the Shares ~~has~~ have not been registered under the Securities Act or any other applicable securities laws. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except in compliance with any exemption therefrom and that any book entries representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor)herein, subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer ~~restrictions~~restrictions and, ~~and~~ as a ~~result~~result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act ~~(“Rule 144”)~~ until at least one year from the date that ~~▇▇▇▇~~ PubCo files a ~~Current Report on~~ Form 820-K F following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations. The Investor acknowledges and agrees that it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares directly from ▇▇▇▇. The Investor further acknowledges and agrees that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ▇▇▇▇, the Company, the Placement Agents or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ▇▇▇▇ expressly set forth in Section 6. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. d. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~SPAC, the Transactions and the business of ~~the Company~~ PubCo and its direct and indirect subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that it has ~~reviewed, or has had an adequate opportunity to review,~~ reviewed the SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, including from PubCo directly, receive such answers and obtain such information as the Investor and ~~such Investor’s~~ its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, ~~including,~~ including but not limited ~~to,~~ to access to marketing materials and a virtual data room containing information about ~~the Company~~ PubCo and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges ~~and agrees~~ that certain information provided ~~to it~~ by ~~▇▇▇▇~~ PubCo was based on ~~good-faith~~ projections, and such ~~good-faith~~ projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the ~~good-faith~~ projections. The Investor further acknowledges that it has reviewed or had the full opportunity to review all disclosure documents provided to such Investor in the offering of the Shares and no statement or printed material which is contrary to such disclosure documents has been made or given to the Investor by or on behalf of the SPAC or PubCo. Except for the representations, warranties and agreements of SPAC expressly set forth in this Subscription Agreement, the Investor is relying exclusively on its, his or her own sources of information, investment analysis and due diligence (including professional advice it deemed appropriate) with respect to the Transactions, the transactions contemplated hereby, the Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of SPAC and PubCo, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. f. e. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~SPAC, ~~the Company~~ PubCo or a representative ~~thereof,~~ of SPAC or ~~by means of contact from the Placement Agents~~PubCo, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~SPAC, ~~the Company~~ PubCo or a representative ~~thereof,~~ of SPAC or ~~the Placement Agents~~PubCo. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other ~~means,~~ means and none of ~~▇▇▇▇~~the SPAC, ~~the Company~~PubCo, ~~the Placement Agents or~~ their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~SPAC, ~~the Company or the Placement Agents or~~ PubCo, any of their respective affiliates or any ~~of its or their~~ control persons, direct or indirect equity holders, officers, managers, directors, employees, consultants, partners, agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ SPAC contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsSPAC. g. f. The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including but not limited to those set forth in the SEC Reports. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment ~~decision,~~ decision and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares~~. The Investor acknowledges~~ , has no need for liquidity with respect to its investment in the Shares and ~~agrees that none~~ has no reason to anticipate any change in circumstances, financial or otherwise, which may cause or require any sale or distribution of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of ~~loss the Investor may suffer by reason of acquiring~~ the Shares. h. g. Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~SPAC. The Investor has determined based on its, his or her own independent review and such professional advice as the Investor deemed appropriate that its, his or her purchase of the Shares and participation in the Transactions are fully consistent with its, his or her financial needs, objectives and condition and is a suitable investment for the Investor, notwithstanding the risks inherent in investing in or holding the subscribed Shares. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. h. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. The Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. i. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. j. The Investor has been duly formed or ~~incorporated and~~ incorporated, is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, ~~with power~~ and ~~authority~~ has full power, right and legal capacity to ~~enter into,~~ execute and deliver this Subscription Agreement and to perform its obligations ~~under this Subscription Agreement~~hereunder. n. k. The execution, delivery and performance by the Investor of this Subscription Agreement and the transactions contemplated herein are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches~~and, ~~defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of~~ if the Investor ~~to enter into and timely perform its obligations under this Subscription Agreement~~is not an individual, ~~and (ii)~~ will not violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, ~~and~~ and, assuming that this Subscription Agreement constitutes the valid and binding obligation of ~~▇▇▇▇~~SPAC, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. o. l. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders ~~List~~ List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC~~, or in any Executive Order issued by the President of the United States and administered by OFAC~~ ”) (collectively, “OFAC Lists”), (ii) owned, directly or indirectly, or controlled by, or acting on behalf of, one or more persons that are named on the OFAC Lists; (iii) organized, incorporated, established, located, resident or born in, or a ~~person~~ citizen, national or ~~entity prohibited~~ the government, including any political subdivision, agency or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and any other Covered Region of Ukraine identified pursuant to Executive Order 14065, and non-government controlled areas of the Kherson and Zaporizhzhia region of Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by ~~any~~ the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (each, a “Prohibited Investor”). The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Investor is permitted to do so under applicable law. Investor represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. The Investor also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions ~~prog~~programs, including the OFAC Lists. The Investor further represents and warrants that, to the extent required by applicable law, the Investor maintains policies and procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor. m. The Investor has or has commitments to have and, when required to deliver payment to SPAC pursuant to Section 2 above, will have, sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement. n. As of the date hereof, the Investor does not have, and during the thirty (30) day period immediately prior to the date hereof the Investor has not entered into, and the Investor will not enter into at any point prior to the earlier to occur of the Closing and the termination of this Subscription Agreement according to its terms, any “put equivalent position” as such term is defined in Rule 16a-1 under the Exchange Act or short sale positions with respect to the securities of the SPAC. o. As of the date hereof, the Investor is the beneficial owner of the Retained Shares, and owns the Retained Shares free from any lien or encumbrance. p. To the knowledge of the Investor, no prior approval is required to be procured from the relevant government authority pursuant to Press Note 3 of 2020 dated 17 April 2020 issued by the Department for Promotion of Industry and Internal Trade read with Rule 6(a) of the Foreign Exchange Management (Non-debt Instruments) Rules 2019 issued by the Government of India in order for the Investor to consummate the Transactions.

Appears in 1 contract

Sources: Subscription Agreement (Direct Selling Acquisition Corp.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ RTP that: a. (a) The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described in~~ within the meaning of Rule 501(a)(1), (2), (3), (7) or (7) 8) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for his, her or its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the Shares~~, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~. b. (b) The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities Act ~~or any other applicable securities laws~~and that RTP is not required to register the Shares except as set forth in Section 7 of this Subscription Agreement. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to RTP or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in ~~compliance~~ each case, in accordance with any exemption therefrom and that any book entries representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as applicable securities laws of the ~~Closing Date, by~~ states of the United States and ~~among Buyer and the~~ other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable ~~law~~jurisdictions. The Investor acknowledges and agrees that the Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions~~, and as a result~~, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities ~~Act (“~~Act, and that the provisions of Rule ~~144”~~144(i) ~~until at least one year from~~ will apply to the ~~date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations~~Shares. The Investor acknowledges and agrees that it has been advised to consult ~~legal counsel and~~ legal, tax and accounting advisors prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares~~. By making~~ . (c) The Investor acknowledges and agrees that the ~~representations herein, the Investor does not agree to hold any of~~ book-entry position representing the Shares ~~for any minimum~~ will bear or ~~specific term and reserves~~ reflect, as applicable, a legend substantially similar to the ~~right~~ following (provided that such legend shall be subject to ~~assign, transfer or otherwise dispose of any of the Shares at any time~~ removal in accordance with ~~or pursuant to a registration statement or an exemption under the Securities Act~~Section Error! Reference source not found. hereof): “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE ISSUER THAT THESE SECURITIES MAY NOT BE OFFERED, RESOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF BY THE HOLDER ABSENT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT EXCEPT (I) TO THE ISSUER OR A SUBSIDIARY THEREOF, (II) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (III) PURSUANT TO ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND THE APPLICABLE LAWS OF ANY OTHER JURISDICTION.” c. (d) The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~RTP. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~RTP, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees~~, partners~~, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ RTP expressly set forth in Section 65 of this Subscription Agreement. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. (e) The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~RTP, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that he, she or it has ~~reviewed, or has had an adequate opportunity to review,~~ reviewed RTP’s filings with the ~~SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. (f) The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~RTP, the Company or a representative ~~thereof,~~ of RTP or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~RTP, the Company or a representative ~~thereof,~~ of RTP or the ~~Placement Agents~~Company. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges that RTP represents and ~~agrees~~ warrants that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~RTP, the ~~Company or~~ Company, the Placement ~~Agents or~~ Agents, any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, ~~partners,~~ agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ RTP contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsRTP. g. (g) The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in RTP’s filings with the ~~SEC Reports~~SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges ~~and agrees~~ that ~~none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees,~~ Investor shall be ~~liable to the Investor pursuant to this Subscription Agreement~~ responsible for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the ~~Placement Agents for all~~ Investor’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither RTP nor the Company has provided any tax advice or any ~~part~~ other representation or guarantee regarding the tax consequences of ~~loss~~ the ~~Investor may suffer~~ transactions contemplated by ~~reason of acquiring~~ the ~~Shares~~Subscription Agreement. h. (h) Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~RTP. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. (i) In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the ~~Investor~~Investor and the representations and warranties in Section 5. ~~The Investor acknowledges and agrees that~~ Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective ~~affiliates,~~ affiliates or any control persons, officers, directors, employees, ~~partners,~~ agents or representatives of any of the foregoing concerning ~~▇▇▇▇~~RTP, the Company, the ~~Business Combination Agreement~~Transaction, the ~~Transactions~~Transaction Agreement, this Subscription ~~Agreement,~~ Agreement or the ~~Investment Transactions~~transactions contemplated hereby or thereby, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. ~~j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives~~ (ij) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. (k) The ~~Investor~~ Investor, if not a natural person, has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. (l) The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches~~and, ~~defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of~~ if the Investor ~~to enter into and timely perform its obligations under this Subscription Agreement~~is not a natural person, ~~and (ii)~~ will not violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature of the Investor on this Subscription Agreement is genuine, and the signatory, if the Investor is ~~an individual~~a natural person, has legal competence and capacity to execute the same or, if the Investor is not ~~an individual~~a natural person, the signatory has been duly authorized to execute the same, ~~and~~ and, assuming that this Subscription Agreement constitutes the valid and binding ~~obligation~~ agreement of ~~▇▇▇▇~~RTP, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. ~~o. The~~ (m) Neither the Investor nor, if the Investor is not a natural person, any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function, is (i) a person ~~or entity~~ named on the ~~List of~~ Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons List, the Foreign Sanctions Evaders ~~List or~~ List, the Sectoral Sanctions Identification List, ~~each~~ or any other similar list of ~~which is~~ sanctioned persons administered by ~~OFAC~~the U.S. Treasury Department’s Office of Foreign Assets Control, or in any ~~Executive Order issued~~ similar list of sanctioned persons administered by the ~~President of~~ European Union or any individual European Union member state, or the United ~~States and administered by OFAC~~ Kingdom (collectively, “~~OFAC~~ Sanctions Lists”); (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union or any individual European Union member state, or the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). The Investor represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required by applicable law, the Investor also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the European Union, or any individual European Union member state, or the United Kingdom, to the extent applicable to it. The Investor further represents that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor. (n) If the Investor is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) an employee benefit plan that is a ~~person~~ governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or ~~entity~~ other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws,” and together with ERISA Plans, “Plans”), the Investor represents and warrants that (A) it has not relied on RTP or any of its affiliates for investment advice or has otherwise acted as the Plan’s fiduciary, with respect to its decision to acquire and hold the Shares, and none of the parties to the Transaction is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with the Investor’s investment in the Shares; and (B) its purchase of the Shares will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, or any applicable Similar Law. (o) The Investor hereby understands and acknowledges that no disclosure or offering document has been prepared by any ~~OFAC sanctions prog~~of the Placement Agents or any of their respective affiliates in connection with the offer and sale of the Shares. (p) The Investor hereby understands and acknowledges that none of the Placement Agents, nor any of their respective affiliates, nor any control persons, officers, directors, employees, agents or representatives of any of the foregoing has made any independent investigation with respect to RTP, the Company or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by RTP. (q) In connection with the issue and purchase of the Shares, none of the Placement Agents, nor any of their respective affiliates, has acted as the Investor’s financial advisor or fiduciary. (r) The Investor has or has commitments to have and, when required to deliver payment to RTP pursuant to Section 2 above, will have sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement. (s) The Investor agrees that, from the date of this Subscription Agreement until the Closing or the ea

Appears in 1 contract

Sources: Subscription Agreement (Reinvent Technology Partners)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ Globis that: a. The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Investor’s Shares only for his, her or its own account and not for the account of others, or if the Investor is subscribing for the Investor’s Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Investor’s Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the Investor’s Shares~~, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~. b. The Investor acknowledges and agrees that the Investor’s Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither~~ the ~~offer nor the sale of the~~ Investor’s Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Investor’s Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to Globis or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the Investor’s Shares shall contain a restrictive legend to such ~~effect~~effect and, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer restrictions, and as a result, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Investor’s Shares for an indefinite period of time. The Investor acknowledges and agrees that the Investor’s Shares will not immediately be eligible for ~~offer, resale, transfer, pledge or disposition~~ resale pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year from the date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulationsAct. The Investor acknowledges and agrees that it has been advised to consult legal counsel ~~and tax and accounting advisors~~ prior to making any offer, resale, ~~pledge,~~ pledge or transfer ~~or other disposition~~ of any of the Investor’s Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Investor’s Shares ~~directly~~ from ~~▇▇▇▇~~Globis. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~Globis, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ Globis expressly set forth in ~~Section 6~~this Subscription Agreement. d. The Investor’s acquisition and holding of the Investor’s Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~Globis, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that he, she or it has ~~reviewed, or has~~ had ~~an adequate~~ the opportunity to ~~review, the~~ review Globis’s SEC ~~Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~Reports. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~Globis, the Company or a representative ~~thereof,~~ of Globis or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~Globis, the Company or a representative ~~thereof,~~ of Globis or the ~~Placement Agents~~Company. The Investor did not become aware of this offering of the Investor’s Shares, nor were the Investor’s Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Investor’s Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~Globis, the ~~Company or the Placement Agents or~~ Company, any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, partners, agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ Globis contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsGlobis. g. The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Investor’s Shares, including those set forth in ~~the~~ Globis’s SEC Reports. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Investor’s Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision~~, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares~~. The Investor is able to sustain a complete loss on its investment in the Investor’s Shares~~. The Investor acknowledges~~ , has no need for liquidity with respect to its investment in the Investor’s Shares and ~~agrees that none~~ has no reason to anticipate any change in circumstances, financial or otherwise, which may cause or require any sale or distribution of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of ~~loss~~ the ~~Investor may suffer by reason of acquiring the~~ Investor’s Shares. h. Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Investor’s Shares and determined that the Investor’s Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~Globis. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. In making its decision to purchase the Investor’s Shares, the Investor has relied solely upon independent investigation made by the Investor. The Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Investor’s Shares or made any findings or determination as to the fairness of this investment. m. k. The ~~Investor~~ Investor, if not an individual, has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. l. The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches~~and, ~~defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of~~ if the Investor ~~to enter into and timely perform its obligations under this Subscription Agreement~~is not an individual, ~~and (ii)~~ will not violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and ~~assuming that this Subscription Agreement constitutes the valid and binding obligation of ▇▇▇▇,~~ this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. o. m. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC, ”) or in any Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions ~~prog~~program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (each, a “Prohibited Investor”). The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Investor is permitted to do so under applicable law. If the Investor is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required by applicable law, the Investor maintains policies and procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Shares were legally derived. n. The Investor acknowledges that it is not aware of any disclosure or offering document has been prepared in connection with the offer and sale of the Investor’s Shares. o. In connection with the issue and purchase of the Investor’s Shares, no person, firm or corporation has acted as the Investor’s financial advisor or fiduciary. p. The Investor will have, when required to deliver payment to Globis pursuant to Section 2 above, sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Investor’s Shares pursuant to this Subscription Agreement.

Appears in 1 contract

Sources: Subscription Agreement (Globis Acquisition Corp.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ VACQ that: a. The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for ~~its~~ the Investor’s own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the Shares~~, unless such newly formed entity is an entity in which all~~ . The representations and warranties set forth on Schedule B are true and correct as of the ~~investors are institutional accredited investors~~date of this Subscription Agreement and will be true and correct as of the Closing Date. Furthermore, ~~and is an “institutional account” as defined in FINRA Rule 4512(c).~~the Investor agrees that its signature to this Subscription Agreement shall constitute a signature on Schedule B hereto regardless of whether the Investor returns a signed copy of Schedule B. b. The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged (other than in connection with ordinary course prime brokerage relationships) or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to VACQ or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act (including, without limitation, a private resale pursuant to the so-called Section 4(a)(1 ½)) exemption, and, in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that ~~any~~ the applicable records of VACQ and its transfer agent wherein the book entries recording ownership of the Shares (and, if applicable, any certificates representing the ~~Shares~~ Shares) shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer ~~restrictions~~restrictions and, ~~and~~ as a ~~result~~result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year from the date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations. The Investor ~~acknowledges and agrees that it~~ has been advised to consult with its legal counsel and tax and accounting advisors prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares directly from ▇▇▇▇. The Investor further acknowledges and agrees that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ▇▇▇▇, the Company, the Placement Agents or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ▇▇▇▇ expressly set forth in Section 6. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ▇▇▇▇, the Transactions and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges and agrees that it has reviewed, or has had an adequate opportunity to review, the SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or by means of contact from the Placement Agents, and the Shares were offered to the Investor by ▇▇▇▇ solely by direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or the Placement Agents. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges and agrees that the Shares (i) were not offered to the Investor by any form of general solicitation or general advertising and (ii) to the Investor’s knowledge without inquiry, are not being offered to the Investor in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges and agrees that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ▇▇▇▇, the Company or the Placement Agents or any of their respective affiliates or any of its or their control persons, officers, directors, employees, partners, agents or representatives), other than the representations and warranties of ▇▇▇▇ contained in Section 6, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the Transactions. g. The Investor acknowledges and agrees that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Investor is a sophisticated investor and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares. The Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ▇▇▇▇. The Investor acknowledges and agrees specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. The Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state agency, securities commission or similar authority has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. The Investor has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement and the transactions contemplated herein are within the powers of the Investor, have been duly authorized and do not and will not (i) constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii) violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding obligation of ▇▇▇▇, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity. o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions prog

Appears in 1 contract

Sources: Subscription Agreement (Vector Acquisition Corp)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ SRAC that: a. The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for ~~its~~ the Investor’s own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the Shares~~, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~. b. The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged (other than in connection with ordinary course prime brokerage relationships) or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to SRAC or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act (including, without limitation, a private resale pursuant to so-called Rule 4(1 ½)), and, in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer ~~restrictions~~restrictions and, ~~and~~ as a ~~result~~result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act ~~(“Rule 144”)~~ until at least one year from the ~~date that ▇▇▇▇ files a Current Report on Form 8-K following the~~ Closing ~~that includes the “Form 10” information required under applicable SEC rules and regulations~~Date. The Investor acknowledges and agrees that it the Investor has been advised to consult with its legal counsel and tax and accounting advisors prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~SRAC. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~SRAC, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, direct or indirect equityholders, officers, managers, directors, employees, consultants, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ SRAC expressly set forth in Section 65 of this Subscription Agreement. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~SRAC, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that he, she or it has ~~reviewed, or has had an adequate opportunity to review,~~ reviewed SRAC’s filings with the ~~SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. e. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~SRAC, the Company or a representative ~~thereof,~~ of SRAC or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~SRAC, the Company or a representative ~~thereof,~~ of SRAC or the ~~Placement Agents~~Company. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~SRAC, the ~~Company or~~ Company, the Placement Agents or (defined below), any of their respective affiliates or any ~~of its or their~~ control persons, direct or indirect equityholders, officers, managers, directors, employees, consultants, partners, agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ SRAC contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsSRAC. g. f. The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in SRAC’s filings with the ~~SEC Reports~~SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. g. Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~SRAC. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. The Investor is able to sustain a complete loss on its investment in the Shares, has no need for liquidity with respect to its investment in the Shares and has no reason to anticipate any change in circumstances, financial or otherwise, which may cause or require any sale or distribution of all or any part of the Shares. i. h. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. ~~The Investor acknowledges and agrees that~~ Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of ~~the~~ either Placement ~~Agents~~ Agent or any of their respective ~~affiliates, control persons, officers, directors, employees, partners, agents~~ affiliates or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇foregoing concerning SRAC, the Company, the ~~credit quality of ▇▇▇▇~~ Transaction, the Transaction Agreement, this Subscription Agreement or the ~~Company~~transactions contemplated hereby or thereby, the Shares or the ~~Investor’s purchase~~ offer and sale of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. i. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. j. The ~~Investor~~ Investor, if not an individual, has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement and the transactions contemplated herein are within the powers of the Investor, have been duly authorized and do not and will not (i) constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii) violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding obligation of ▇▇▇▇, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity. o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions prog

Appears in 1 contract

Sources: Subscription Agreement (Stable Road Acquisition Corp.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ the Issuer that: a. ~~The Investor~~At the time the Investor was offered the Securities, ~~or each~~ it was, and as of the ~~funds managed by or affiliated with~~ date hereof and as of the ~~Investor for which the Investor is acting as nominee, as applicable,~~ Closing Date (i) is not a ~~“qualified institutional buyer”~~ U.S. person and located offshore (as such terms are defined in ~~Rule 144A~~ Regulation S under the Securities Act)~~, or an institutional “accredited investor” (described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A~~, (ii) is acquiring the ~~Shares~~ Securities only for its own account and not for the account of others, or if the Investor is subscribing for the ~~Shares~~ Securities as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the ~~Shares~~ Securities with a view to, or for offer or ~~sale~~ resale in connection with, any public sale or distribution thereof in violation of the Securities ~~Act. The~~ Act (provided, however, that by making the representations herein, the Investor ~~has completed Schedule A following~~ does not agree to hold any of the ~~signature page hereto~~ Securities for any minimum or other specific term and reserves the ~~information contained therein is accurate~~ right to dispose of the Securities at any time in accordance with or pursuant to an effective registration statement under the Securities Act or an exemption from such registration and ~~complete~~in compliance with the applicable U.S. federal and state securities laws). The Investor is not an entity formed for the specific purpose of acquiring the ~~Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~Securities. b. The Investor acknowledges and agrees that the ~~Shares~~ Securities are being offered in a an offshore transaction not involving any public offering within the meaning of the Securities Act and that ~~neither~~ the offer ~~nor the~~ and sale of the ~~Shares has~~ Securities have not been registered under the Securities Act or any ~~other applicable~~ U.S. state securities laws. The Investor acknowledges and ~~agrees~~ agrees, except as otherwise provided herein, that the ~~Shares~~ Securities may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act ~~except~~ and any other applicable U.S. state securities laws (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to “offshore transactions” and following expiration of a 40-day “distribution compliance period” (each within the meaning of Regulation S) or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Shares~~ Securities shall contain a restrictive legend or notation to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the ~~Shares~~ Securities will be subject to transfer ~~restrictions~~restrictions and, ~~and~~ as a ~~result~~result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year from the date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations. The Investor acknowledges and agrees that it has been advised to consult legal counsel ~~and tax and accounting advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the ~~Shares~~Securities. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares directly from ▇▇▇▇. The Investor further acknowledges and agrees that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ▇▇▇▇, the Company, the Placement Agents or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ▇▇▇▇ expressly set forth in Section 6. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ▇▇▇▇, the Transactions and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges and agrees that it has reviewed, or has had an adequate opportunity to review, the SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or by means of contact from the Placement Agents, and the Shares were offered to the Investor by ▇▇▇▇ solely by direct contact between the Investor and ▇▇▇▇, the Company or a representative thereof, or the Placement Agents. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges and agrees that the Shares (i) were not offered to the Investor by any form of general solicitation or general advertising and (ii) to the Investor’s knowledge without inquiry, are not being offered to the Investor in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges and agrees that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ▇▇▇▇, the Company or the Placement Agents or any of their respective affiliates or any of its or their control persons, officers, directors, employees, partners, agents or representatives), other than the representations and warranties of ▇▇▇▇ contained in Section 6, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the Transactions. g. The Investor acknowledges and agrees that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Investor is a sophisticated investor and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares. The Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ▇▇▇▇. The Investor acknowledges and agrees specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. The Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect For purposes of this Subscription Agreement, ~~the Investment Transactions~~ “Transfer” shall mean any direct or ~~the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates~~indirect transfer, ~~control persons~~redemption, ~~officers, directors, employees~~ disposition or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained monetization in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state agency, securities commission or similar authority has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. The Investor has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement and the transactions contemplated herein are within the powers of the Investor, have been duly authorized and do not and will not (i) constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii) violate any provisions of the Investor’s organizational documentsmanner whatsoever, including, without limitation, ~~its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on~~ covenants and agreements included in this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding obligation of ▇▇▇▇, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equityAgreement. o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions prog

Appears in 1 contract

Sources: Subscription Agreement (Selina Hospitality PLC)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ IPOC that: a. (a) The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an ~~institutional~~ “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the Shares~~, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~. b. (b) The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities Act ~~or any other applicable securities laws~~and that IPOC is not required to register the Shares except as set forth in Section 7 of this Subscription Agreement. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to IPOC or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in ~~compliance~~ each case, in accordance with any ~~exemption therefrom~~ applicable securities laws of the states of the United States and other applicable jurisdictions, and that any ~~book entries~~ certificates representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions~~, and as a result~~, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities ~~Act (“~~Act, and that the provisions of Rule ~~144”~~144(i) ~~until at least one year from~~ will apply to the ~~date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations~~Shares. The Investor acknowledges and agrees that he, she or it has been advised to consult ~~legal counsel and~~ legal, tax and accounting ~~advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. (c) The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~IPOC. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~IPOC, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees~~, partners~~, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ IPOC expressly set forth in Section 65 of this Subscription Agreement. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. (d) The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~IPOC, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that he, she or it has ~~reviewed, or has had an adequate opportunity to review,~~ reviewed IPOC’s filings with the ~~SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. (e) The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~IPOC, the Company or a representative ~~thereof,~~ of IPOC or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~IPOC, the Company or a representative ~~thereof,~~ of IPOC or the ~~Placement Agents~~Company. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that he, she or it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~IPOC, the ~~Company or~~ Company, the Placement ~~Agents or~~ Agents, any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, ~~partners,~~ agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ IPOC contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsIPOC. g. (f) The Investor acknowledges ~~and agrees~~ that he, she or it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in IPOC’s filings with the ~~SEC Reports~~SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges ~~and agrees~~ that ~~none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees,~~ Investor shall be ~~liable to the Investor pursuant to this Subscription Agreement~~ responsible for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the ~~Placement Agents for all~~ Investor’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither IPOC nor the Company has provided any tax advice or any ~~part~~ other representation or guarantee regarding the tax consequences of ~~loss~~ the ~~Investor may suffer~~ transactions contemplated by ~~reason of acquiring~~ the ~~Shares~~Subscription Agreement. h. (g) Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~IPOC. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. (h) In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the ~~Investor~~Investor and the representations and warranties of IPOC in Section 5. ~~The Investor acknowledges and agrees that~~ Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective ~~affiliates,~~ affiliates or any control persons, officers, directors, employees, ~~partners,~~ agents or representatives of any of the foregoing concerning ~~▇▇▇▇~~IPOC, the Company, the ~~Business Combination Agreement~~Transaction, the ~~Transactions~~Transaction Agreement, this Subscription ~~Agreement,~~ Agreement or the ~~Investment Transactions~~transactions contemplated hereby or thereby, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. ~~j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives~~ (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. (j) The ~~Investor~~ Investor, if not a natural person, has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. (k) The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches~~and, ~~defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of~~ if the Investor ~~to enter into and timely perform its obligations under this Subscription Agreement~~is not a natural person, ~~and (ii)~~ will not violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature of the Investor on this Subscription Agreement is genuine, and the signatory, if the Investor is ~~an individual~~a natural person, has legal competence and capacity to execute the same or, if the Investor is not ~~an individual~~a natural person, the signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding ~~obligation~~ agreement of ~~▇▇▇▇~~IPOC, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. ~~o. The~~ (l) Neither the Investor nor, if the Investor is not a natural person, any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function, is (i) a person ~~or entity~~ named on the ~~List of~~ Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons List, the Foreign Sanctions Evaders ~~List or~~ List, the Sectoral Sanctions Identification List, ~~each~~ or any other similar list of ~~which is~~ sanctioned persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), or in any ~~Executive Order issued~~ similar list of sanctioned persons administered by the ~~President of~~ European Union or any individual European Union member state, including the United ~~States and administered by OFAC~~ Kingdom (collectively, “~~OFAC~~ Sanctions Lists”); (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union or any individual European Union member state, including the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). The Investor represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. The Investor also represents that he, she or it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the European Union, or any individual European Union member state, including the United Kingdom, to the extent applicable to it. The Investor further represents that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor. (m) If the Investor is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) an employee benefit plan that is a ~~person~~ governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or ~~entity~~ other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws,” and together with ERISA Plans, “Plans”), the Investor represents and warrants that (A) neither IPOC nor any of its affiliates has provided investment advice or has otherwise acted as the Plan’s fiduciary, with respect to its decision to acquire and hold the Shares, and none of the parties to the Transaction is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with the Investor’s investment in the Shares; and (B) its purchase of the Shares will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, or any applicable Similar Law. (n) No disclosure or offering document has been prepared by Credit Suisse Securities (USA) LLC and Citigroup Global Markets Inc. (collectively, the “Placement Agents”) or any ~~OFAC sanctions prog~~of their respective affiliates in connection with the offer and sale of the Shares. (o) None of the Placement Agents, nor any of their respective affiliates, nor any control persons, officers, directors, employees, agents or representatives of any of the foregoing has made any independent investigation with respect to IPOC, the Company or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by IPOC. (p) In connection with the issue and purchase of the Shares, none of the Placement Agents, nor any of their respective affiliates, has acted as the Investor’s financial advisor or fiduciary. (q) The Investor has or has commitments to have and, when required to deliver payment to IPOC pursuant to Section 2 above, will have, sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement.

Appears in 1 contract

Sources: Subscription Agreement (SCH Sponsor III LLC)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ Tailwind that: a. The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule A following the signature page hereto and the information contained therein is accurate and complete. The Investor is not an entity formed for the specific purpose of acquiring the Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(cA). b. The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither~~ the offer ~~nor the~~ and sale of the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to Tailwind or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the Shares shall contain a restrictive legend to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer ~~restrictions~~restrictions and, ~~and~~ as a ~~result~~result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act ~~(“Rule 144”)~~ until at least one year from the date that ~~▇▇▇▇~~ Tailwind files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under applicable SEC rules and regulations. The Investor acknowledges and agrees that it has been advised to consult legal counsel ~~and tax and accounting advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~Tailwind. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~Tailwind, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ Tailwind expressly set forth in ~~Section 6~~this Subscription Agreement. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares~~, including, with respect to ▇▇▇▇, the Transactions and the business of the Company and its subsidiaries~~. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that it has ~~reviewed, or has~~ had ~~an adequate~~ the opportunity to ~~review,~~ review Tailwind’s filings with the ~~SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~Tailwind, the Company or a representative ~~thereof,~~ of Tailwind or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~Tailwind, the Company or a representative ~~thereof,~~ of Tailwind or the ~~Placement Agents~~Company. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~Tailwind, the ~~Company or~~ Company, the Placement ~~Agents or~~ Agent, any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, partners, agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ Tailwind contained in ~~Section 6~~this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsTailwind. g. The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, ~~including~~ including, without limitation, those set forth in Tailwind’s filings with the ~~SEC Reports~~SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ▇▇▇▇. The Investor acknowledges and agrees specifically that a possibility of total loss exists. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. The Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state agency, securities commission or similar authority has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. The Investor has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement and the transactions contemplated herein are within the powers of the Investor, have been duly authorized and do not and will not (i) constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii) violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding obligation of ▇▇▇▇, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity. o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions prog

Appears in 1 contract

Sources: Subscription Agreement (Tailwind Acquisition Corp.)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ SCS that: a. (a) The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an ~~institutional~~ “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule AA hereto, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act~~Act (and shall provide the requested information set forth on Schedule A hereto). The Investor, if such Investor ~~has completed Schedule A following the signature page hereto and the information contained therein~~ is ~~accurate and complete. The Investor~~ not a natural person, is not an entity formed for the specific purpose of acquiring the ~~Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors,~~ Shares and is an “institutional account” as defined in by FINRA Rule 4512(c)) of an investment adviser to which the Investor has delegated investment decision making authority. The Investor, or its investment adviser, as applicable, is aware that the sale of the Shares is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring the Shares for the Investor’s own account or for an account over which it exercises sole discretion for another qualified institutional buyer or accredited investor. b. (b) The ~~Investor~~ Investor, or its investment adviser, as applicable, acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that ~~neither the offer nor the sale of~~ the Shares ~~has~~ have not been registered under the Securities Act ~~or any other applicable securities laws~~and that SCS is not required to register the Shares except as set forth in Section 8 of this Subscription Agreement. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to SCS or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in ~~compliance~~ each case, in accordance with any ~~exemption therefrom~~ applicable securities laws of the states of the United States and other applicable jurisdictions, and that any certificates or book entries representing the Shares shall contain a restrictive legend to such ~~effect, which~~ effect (provided that such legend ~~shall~~ may be subject to removal ~~as set forth herein and~~ in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, accordance with Section ~~8 hereof shall not apply and not be effective with respect to such Investor~~8(d)~~, subject to applicable law~~). The ~~Investor~~ Investor, or its investment adviser, as applicable, acknowledges and agrees that the Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions~~, and as a result~~, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The ~~Investor~~ Investor, or its investment adviser, as applicable, acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities ~~Act (“~~Act, and that the provisions of Rule ~~144”~~144(i) ~~until at least one year from~~ will apply to the ~~date that ▇▇▇▇ files a Current Report on Form 8-K following the Closing that includes the “Form 10” information required under applicable SEC rules and regulations~~Shares. The Investor acknowledges and agrees that it has been advised to consult ~~legal counsel and~~ legal, tax and accounting ~~advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. (c) The Investor acknowledges and agrees that the Investor is purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~SCS, and that SCS, the Company, and/or the Placement Agents and/or their respective affiliates may now or in the future own securities of SCS and may purchase Shares. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇~~SCS, the Company, ~~the Placement Agents or~~ any of their respective affiliates or any control persons, officers, directors, employees~~, partners~~, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ SCS expressly set forth in Section 65 of this Subscription Agreement. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. (d) The Investor acknowledges and agrees that the Investor has received or had access to such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to ~~▇▇▇▇~~SCS, the ~~Transactions~~ Transaction and the business of the Company and its subsidiaries. The Investor acknowledges that Investor has consulted with its own legal, accounting, financial, regulatory, and tax advisors, to the extent deemed appropriate. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that it has ~~reviewed, or has~~ had ~~an adequate~~ the opportunity to ~~review,~~ review SCS’s filings with the ~~SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the opportunity to review financial and other information as it deemed necessary to make its decision, and ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. . (e) The Investor acknowledges ~~and agrees~~ that certain information provided to ~~it by ▇▇▇▇~~ the Investor was based on ~~good-faith~~ projections, and such ~~good-faith~~ projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the ~~good-faith~~ projections. The Investor acknowledges that such information and projections were prepared without the participation of the Placement Agents and that the Placement Agents, SCS and the Company do not assume responsibility for independent verification of, or the accuracy or completeness of, such information or projections. f. (f) The ~~Investor~~ Investor, or its investment adviser, as applicable, became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~SCS, the Company or a representative ~~thereof,~~ of SCS or ~~by means of contact from~~ the ~~Placement Agents~~Company, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~SCS, the Company or a representative ~~thereof~~of SCS or the Company. The Investor, or ~~the Placement Agents. The Investor~~ its investment adviser, as applicable, did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The ~~Investor~~ Investor, or its investment adviser, as applicable, acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~SCS, the ~~Company or~~ Company, the Placement ~~Agents or~~ Agents, any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, ~~partners,~~ agents or ~~representatives~~representatives of any of the foregoing), other than the representations and warranties of ~~▇▇▇▇~~ SCS contained in Section 65 of this Subscription Agreement, in making its investment or decision to invest in ▇▇▇▇. The Investor further acknowledges and agrees that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsSCS. g. (g) The ~~Investor~~ Investor, or its investment adviser, as applicable, acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in SCS’s filings with the ~~SEC Reports~~SEC. The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges ~~and agrees~~ that ~~none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees,~~ Investor shall be ~~liable to the Investor pursuant to this Subscription Agreement~~ responsible for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the ~~Placement Agents for all~~ Investor’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither SCS nor the Company has provided any tax advice or any ~~part~~ other representation or guarantee regarding the tax consequences of ~~loss~~ the ~~Investor may suffer~~ transactions contemplated by ~~reason of acquiring~~ the ~~Shares~~Subscription Agreement. h. (h) Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~SCS. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. i. (i) In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the ~~Investor~~Investor and the representations and warranties of SCS in Section 5. ~~The Investor acknowledges and agrees that~~ Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective ~~affiliates,~~ affiliates or any control persons, officers, directors, employees, ~~partners,~~ agents or representatives of any of the foregoing concerning ~~▇▇▇▇~~SCS, the Company, the ~~Business Combination Agreement~~Transaction, the ~~Transactions~~Transaction Agreement, this Subscription ~~Agreement,~~ Agreement or the ~~Investment Transactions~~transactions contemplated hereby or thereby, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions. ~~j. The Investor acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives~~ (ij) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to ▇▇▇▇, the Company, the credit quality of ▇▇▇▇ or the Company, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to ▇▇▇▇ or the Company, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with ▇▇▇▇ or the Company (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, ▇▇▇▇, or the Company. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents. l. The Investor acknowledges and agrees that no federal or state ~~agency, securities commission or similar authority~~ agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. (k) The Investor has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. (l) The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches, defaults or conflicts that would~~ and will not ~~reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii)~~ violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature of the Investor on this Subscription Agreement is genuine, and the ~~signatory, if the Investor is an individual,~~ signatory has legal competence and capacity to execute the same ~~or, if the Investor is not an individual,~~ or the signatory has been duly authorized to execute the same, ~~and~~ and, assuming that this Subscription Agreement constitutes the valid and binding ~~obligation~~ agreement of ~~▇▇▇▇~~SCS, this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. ~~o. The~~ (m) Neither the Investor ~~is not~~ nor any of its officers, directors, managers, managing members, general partners, subsidiaries, affiliates, or, to the Investor’s knowledge, the Investor’s agents or representatives acting on their behalf in connection with this Agreement is: (i) a person ~~or entity~~ named on the ~~List of~~ Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons List, the Foreign Sanctions Evaders ~~List or~~ List, the Sectoral Sanctions Identification List, ~~each~~ or any other similar list of ~~which is~~ sanctioned persons administered by ~~OFAC~~the U.S. Treasury Department’s Office of Foreign Assets Control, or in any ~~Executive Order issued~~ similar list of sanctioned persons administered by the ~~President of~~ European Union, any individual European Union member state or the United ~~States and administered by OFAC~~ Kingdom (collectively, “~~OFAC~~ Sanctions Lists”); (ii) directly or indirectly 50% or more owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory that is the subject of comprehensive trade restrictions by the United States, the European Union, any individual European Union member state or the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or, to the Investor’s knowledge, providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). The Investor represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. The Investor also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the European Union, any individual European Union member state or the United Kingdom, to the extent applicable to it. The Investor further represents that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor. (n) If the Investor is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) an employee benefit plan that is a ~~person~~ governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or ~~entity~~ other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws,” and together with ERISA Plans, “Plans”), the Investor represents and warrants that (A) neither SCS nor any of its affiliates has provided investment advice or has otherwise acted as the Plan’s fiduciary, with respect to its decision to acquire and hold the Shares, and none of the parties to the Transaction is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with the Investor’s investment in the Shares; and (B) its purchase of the Shares will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, or any applicable Similar Law. (o) No disclosure or offering document has been prepared by Citigroup Global Markets Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Jefferies LLC, Evercore Group LLC, and UBS Securities LLC (collectively, the “Placement Agents”) or any ~~OFAC sanctions prog~~of their respective affiliates in connection with the offer and sale of the Shares. (p) None of the Placement Agents, nor any of their respective affiliates, nor any control persons, officers, directors, employees, agents or representatives of any of t

Appears in 1 contract

Sources: Subscription Agreement (Palihapitiya Chamath)

Investor Representations and Warranties. The Investor represents and warrants to ~~▇▇▇▇~~ the Issuer and BOA that: a. The ~~Investor, or each of the funds managed by or affiliated with the~~ Investor ~~for which the Investor is acting as nominee, as applicable,~~ (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), ) or an institutional “accredited investor” (~~described in~~ within the meaning of Rule ~~501(a)(1), (2), (3) or (7~~501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such ~~account~~ account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act. The Investor has completed~~ Act (and shall provide the requested information set forth on Schedule ~~A following the signature page hereto and the information contained therein is accurate and complete~~A). The Investor is not an entity formed for the specific purpose of acquiring the Shares~~, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and is an “institutional account” as defined in FINRA Rule 4512(c)~~. b. The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that ~~neither~~ the offer ~~nor the~~ and sale of the Shares ~~has~~ have not been registered under the Securities ~~Act or any other applicable securities laws~~Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in ~~compliance~~ each of clauses (i) and (iii) in accordance with any ~~exemption therefrom~~ applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a restrictive legend or notation to such effect, which legend shall be subject to removal as set forth herein and in the Stockholders’ Agreement, to be dated as of the Closing Date, by and among Buyer and the other parties thereto (the “Stockholders’ Agreement”) (but only to the extent that the Investor is party to the Stockholders’ Agreement, in which case, notwithstanding anything else contained herein to the contrary, Section 8 hereof shall not apply and not be effective with respect to such Investor), subject to applicable law. The Investor acknowledges and agrees that the Shares will be subject to transfer ~~restrictions~~restrictions and, ~~and~~ as a ~~result~~result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act ~~(“Rule 144”)~~ until at least one year from the date that ~~▇▇▇▇~~ the Issuer files a Current Report on Form 86-K following the Closing Date that includes the “Form 10” information required under applicable ~~SEC~~ Commission rules and regulations. The Investor acknowledges and agrees that it has been advised to consult legal counsel ~~and tax and accounting advisors~~ prior to making any offer, resale, ~~pledge~~transfer, ~~transfer~~ pledge or ~~other~~ disposition of any of the Shares. By making the representations herein, the Investor does not agree to hold any of the Shares for any minimum or specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. c. The Investor acknowledges and agrees that the Investor is subscribing for and purchasing the Shares ~~directly~~ from ~~▇▇▇▇~~the Issuer. The Investor further acknowledges ~~and agrees~~ that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of ~~▇▇▇▇,~~ the ~~Company, the Placement Agents~~ Issuer or any of ~~their respective~~ its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of ~~▇▇▇▇~~ the Issuer and BOA expressly set forth in ~~Section 6~~Sections 5 and 6 of this Subscription Agreement, respectively. The Investor acknowledges that certain information provided by the Issuer and BOA was based on projections and such projections were based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties (including without limitation those included in the investor presentation provided to the Investor) that could cause actual results to differ materially from those contained in the projections. The Investor further acknowledges that the information provided to the Investor is preliminary and subject to change. d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. e. The Investor acknowledges and agrees that the Investor has received access to, and has had an adequate opportunity to review, such financial and other information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, without limitation, with respect to ~~▇▇▇▇~~the Issuer, the ~~Transactions~~ Transaction and the business of the ~~Company~~ Issuer and its ~~subsidiaries~~subsidiaries and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Investor’s investment in the Shares. Without limiting the generality of the foregoing, the Investor acknowledges ~~and agrees~~ that it has ~~reviewed,~~ reviewed the documents made available by or ~~has had an adequate opportunity to review,~~ on behalf of the ~~SEC Reports and other information as the Investor has deemed necessary to make an investment decision with respect to the Shares~~Issuer. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, including, but not limited to, access to marketing materials and a virtual data room containing information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor to evaluate its investment. However, neither any inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on RONI’s representations, warranties, covenants and agreements contained in this Subscription Agreement. The Investor acknowledges and agrees that certain information provided to it by ▇▇▇▇ was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections. f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and ~~▇▇▇▇~~the Issuer, ~~the Company~~ BOA or a representative ~~thereof,~~ of the Issuer or ~~by means of contact from the Placement Agents~~BOA, and the Shares were offered to the Investor ~~by ▇▇▇▇~~ solely by direct contact between the Investor and ~~▇▇▇▇~~the Issuer, ~~the Company~~ BOA or a representative ~~thereof,~~ of the Issuer or ~~the Placement Agents~~BOA. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means, and none of ▇▇▇▇, the Company, the Placement Agents or their respective representatives or any person acting on behalf of any of them acted as investment advisor, broker or dealer to the Investor. The Investor acknowledges ~~and agrees~~ that the Shares (i) were not offered ~~to the Investor~~ by any form of general solicitation or general advertising and (ii) ~~to the Investor’s knowledge without inquiry,~~ are not being offered ~~to the Investor~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges ~~and agrees~~ that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, ~~▇▇▇▇~~the Issuer, BOA, the ~~Company or the~~ Placement ~~Agents or~~ Agents, any of their respective affiliates or any ~~of its or their~~ control persons, officers, directors, employees, partners, agents or ~~representatives~~representatives of any of the foregoing), other than the respective representations and warranties of ~~▇▇▇▇~~ the Issuer and BOA contained in ~~Section 6~~Sections 5 and 6 of this Subscription Agreement, in making its investment or decision to invest in ~~▇▇▇▇. The Investor further acknowledges and agrees that~~ the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to ▇▇▇▇, the Company, this offering or the TransactionsIssuer. g. The Investor acknowledges ~~and agrees~~ that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Shares (including, ~~including those set forth~~ without limitation, the risks included in the ~~SEC Reports~~investor presentation provided to Investor). The Investor ~~is a sophisticated investor and~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~. The~~ , and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares. h. Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in ~~▇▇▇▇~~the Issuer. The Investor acknowledges ~~and agrees~~ specifically that a possibility of total loss exists. The Investor will not look to the Placement Agents for all or part of any such loss or losses the Investor may suffer, is able to sustain a complete loss on its investment in the Shares, has no need for liquidity with respect to its investment in the Shares and has no reason to anticipate any change in circumstances, financial or otherwise, which may cause or require any sale or distribution of all or any part of the Shares. i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. ~~The Investor acknowledges and agrees that~~ Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective ~~affiliates, control persons, officers, directors, employees, partners, agents~~ affiliates or representatives concerning ▇▇▇▇, the Company, the Business Combination Agreement, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. Neither the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the ~~foregoing~~foregoing concerning the Issuer, ~~shall have any liability or obligation (including without limitation~~BOA, ~~for or with respect to any losses~~the Transaction, ~~claims~~the Transaction Agreement, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription ~~Agreement~~Agreement or the transactions contemplated hereby or thereby, the ~~Investment Transactions~~ Shares or the ~~Transactions~~offer and sale of the Shares. j. The Investor acknowledges ~~and agrees~~ that the Placement Agents ~~and their respective affiliates, control persons, officers, directors, employees or representatives~~ (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made ~~or make~~ any representation, express or implied as to ~~▇▇▇▇~~the Issuer, BOA, the ~~Company, the~~ Issuer’s credit ~~quality of ▇▇▇▇ or the Company~~quality, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the ~~Investment Transactions or the Transactions~~issue and purchase of Shares, (iv) may have ~~acquired~~ acquired, or may ~~acquire~~ acquire, non-public information with respect to ~~▇▇▇▇ or~~ the ~~Company~~Issuer, ~~which, subject to the requirements of applicable law,~~ which the Investor agrees need not be provided to ~~it or~~ it, (v) may have existing or future business relationships with ~~▇▇▇▇ or~~ the ~~Company~~ Issuer and BOA (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems ~~or they deem~~ necessary or appropriate to protect its ~~or their~~ interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares. k. The Investor acknowledges ~~and agrees~~ that it has not relied on the Placement Agents in connection with ~~its~~ their determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement ~~Agents~~ Agents, any of their affiliates or any person acting on ~~their~~ its behalf have conducted with respect to the Shares, ~~▇▇▇▇,~~ the Issuer or ~~the Company~~BOA. The Investor further acknowledges ~~and agrees~~ that it has not relied on any information contained in any research reports prepared by the Placement ~~Agents~~Agents or any of their respective affiliates. l. The Investor acknowledges and agrees that no ~~federal or state agency, securities commission or similar authority~~ governmental agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment. m. The ~~Investor~~ Investor, if not an individual, has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of ~~incorporation~~ formation or ~~formation~~incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. n. The execution, delivery and performance by the Investor of this Subscription Agreement ~~and the transactions contemplated herein~~ are within the powers of the Investor, have been duly authorized and ~~do not and~~ will not ~~(i)~~ constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, ~~except for such breaches~~and, ~~defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of~~ if the Investor ~~to enter into and timely perform its obligations under this Subscription Agreement~~is not an individual, ~~and (ii)~~ will not conflict with or violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and ~~assuming that~~ this Subscription Agreement ~~constitutes~~ has been duly executed and delivered by the ~~valid~~ Investor and ~~binding obligation of ▇▇▇▇, this Subscription Agreement~~ constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or and (ii) principles of equity, whether considered at law or equity. o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC, ”) or in any Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions ~~prog~~program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Investor is permitted to do so under applicable law. If the Investor is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including, without limitation, the OFAC List. To the extent required by applicable law, the Investor maintains policies and procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Shares were legally derived. p. The Investor acknowledges that no disclosure or offering document has been prepared by UBS Securities LLC or PJT Partners LP or any of their respective affiliates (collectively, the “Placement Agents”) in connection with the offer and sale of the Shares. q. The Investor acknowledges that neither Placement Agent, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing have made any independent investigation with respect to the Issuer, BOA or their respective subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by or on behalf of the Issuer. r. The Investor acknowledges that in connection with the issue and purchase of the Shares, neither of the Placement Agents has acted as the Investor’s financial advisor or fiduciary. Moreover, the Investor acknowledges that PJT Partners LP is acting both as a Placement Agent and an advisor to the Issuer, and UBS Securities LLC is acting both as a Placement Agent to the Issuer and as a capital markets advisor to BOA. s. The Investor has or has commitments to have and, when required to deliver payment to the Issuer pursuant to Section 2 above, will have, sufficient funds to pay the Subscription Amount and consummate the sale, purchase and issuance of the Shares pursuant to this Subscription Agreement. t. The Investor does not have, as of the date hereof, and during the 30-day period immediately prior to the date hereof such Investor has not entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under the Exchange Act or short sale positions with respect to the securities of BOA. Notwithstanding the foregoing, in the case of an Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers have

Appears in 1 contract

Sources: Subscription Agreement (BOA Acquisition Corp.)

Common use of Investor Representations and Warranties Clause in Contracts