Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement. (2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice. (3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period. (4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act. (5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period. (6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser. (7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein. (8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares. (9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) Parent is an "accredited investor" within the Consideration meaning of the Securities Act. Parent has knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of the investment in the SatCon Shares are and is financially able to undertake the risks involved in such an investment. Parent understands that (i) the SatCon Shares have not being been registered under the laws Securities Act, or any state securities law by reason for their issuance in a transaction exempt from the registration requirements of any jurisdiction and are being sold the Securities Act pursuant to Section 4(2) and Regulation D promulgated thereunder and an exemption under the applicable state securities law and (ii) such SatCon Shares must be held indefinitely unless a registration statement covering the resale of such shares is effective under the Securities Act and such state law or unless an exemption from registration set forth under the Securities Act and such state law is available.
(b) Parent agrees that SatCon Shares shall not be sold or transferred unless either (i) they first shall have been registered under the Securities Act, or (ii) the Buyer first shall have been furnished with an opinion of legal counsel, reasonably satisfactory to the Parent and which may be counsel to the Buyer, to the effect that such sale or transfer is exempt from the registration requirements of the Securities Act. The SatCon Shares may be pledged and transferred to Key Bank, N.A. in connection with the Parent's credit facility. Each certificate representing SatCon Shares shall bear a legend substantially in the following form: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, and may not be offered, sold or otherwise transferred, pledged or hypothecated without the consent of SatCon Technology Corporation and unless and until such securities are registered under such Act or an opinion of counsel satisfactory to SatCon Technology Corporation is obtained to the effect that such registration is not required."
(c) The Buyer has granted the "Securities Act") Parent and (b) Purchaser has not furnished the Vendor with its attorneys or other representatives access to all information that would be included in about the applicable registration statement if Buyer which Parent has requested; and the Consideration Shares were offered Parent has had the opportunity to ask questions of, and registered under receive answers from, representatives of the Securities ActBuyer to ask questions of, and receive answers from, representatives of the Buyer concerning such information and the Buyer's financial condition and prospects.
(5d) The Vendor represents that the Consideration Shares will be acquired solely for the account principal office of the VendorParent and the place at which the decision by the Parent to participate in this Agreement and the transactions contemplated hereby was made is located in New York. Any information furnished in the schedules of the Parent, solely for investment Company or U.K. Subsidiary (a "Disclosure Schedule") shall be deemed to modify all of the Parent's representations and warranties. The inclusion of any information in the Disclosure Schedule shall not be deemed to be an admission or acknowledgment, in and of itself, that such information is required by the terms hereof to be disclosed, is material to the Disclosure Schedule, has or would have a material adverse effect. For purposes and not with a view of this Agreement, the terms "to resale the best of the Company's knowledge," "to the best of the Parent's knowledge," "known by the Company," "known to the Parent" or distributionother words of similar meaning shall mean the actual knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇▇ without any obligation of investigation, and that no shall not refer to the knowledge of any other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite periodentity.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges Each Member hereby confirms that the Purchaser is a reporting company in Canada and securities to be acquired by the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States Members hereunder ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser terms and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3conditions herein) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for investment for the account of the VendorMember’s own account, solely for investment purposes not as a nominee or agent, and not with a view to the resale or distributiondistribution of any part thereof (other than pursuant to the registration statement contemplated hereby), and that the Member has no other person haspresent intention of selling, granting any participation in, or will acquire, otherwise distributing the same (other than pursuant to the registration statement contemplated hereby). Each Member further represents that the Member does not presently have any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person Person to sell, transfer or pledge grant participations to such personPerson or to any third Person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to any of such securities. Each Member understands that the Consideration Shares.
(9) The Vendor representssecurities to be acquired, warrantssubject to the terms and conditions herein, have not been, and until registered in compliance with this Agreement, will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Member’s representations as expressed herein. The Member understands that, until registered in compliance with this Agreement, the securities are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Member must hold the securities indefinitely unless they are registered with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Member acknowledges that (aParent has no obligation to register or qualify the securities for resale except as set forth in this Agreement. The Member understands that the securities may, until registered in accordance with this Agreement, be notated with a customary Securities Act legend. Each Member represents that he is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Consideration Shares were not offered Securities Act. Each Member confirms that the Member resides in the state or distributed province identified in the address of the Parent set forth in this Agreement. Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Vendor through an advertisement in printed media of general Securities and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertisingExchange Commission.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (STAMPS.COM Inc)
Securities Representations. In connection with the acquisition of the Restricted Securities as contemplated in this Section 2 or Section 8 below, the Seller hereby makes the following representations and warranties (1all representations and warranties shall be deemed to have been made and updated each time Restricted Securities are issued, whether in conjunction with the Closing or thereafter, unless the Buyer and the Parent agree that any such representation or warranty is no longer applicable):
(i) The Vendor acknowledges that the Purchaser Seller is a reporting company an “Accredited Investor” as defined in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2Rule 501(a) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933Regulation D, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5ii) The Vendor represents that Seller has sufficient knowledge and experience in business and financial matters so as to be able to evaluate the Consideration Shares will be acquired solely for the account risks and merits of the Vendor, solely for its investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration SharesRestricted Securities and has so evaluated the merits and risks of such investment. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor Seller is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability able to bear the financial economic risk of an investment in Purchaserthe Restricted Securities and, at the present time, is able to afford a complete loss of such investment.
(7iii) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against Seller is not acquiring any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media Restricted Securities as a result of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising, including, but not limited to, any advertisement, article, notice or other communication regarding the Restricted Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or meeting or any other general advertisement.
(iv) The Seller acknowledges it has reviewed all the information it considers necessary or appropriate for deciding whether to acquire the Restricted Securities, including, but not limited, to the Parent’s filings with the Securities and Exchange Commission. The Seller has conducted all due diligence and has received or has had full access to all the information it considers necessary or appropriate to make an informed investment decision with respect to the Restricted Securities to be issued to the Seller. The Seller has had an opportunity to ask questions and receive answers from Parent regarding the terms and conditions of the issuance of the Restricted Securities and to obtain additional information necessary to verify any information furnished to the Seller or to which the Seller has had access. The Seller has sought such accounting, legal and tax advice as it has considered necessary to make an informed decision with respect to its acquisition of the Restricted Securities.
(v) The Restricted Securities are being acquired by the Seller for its own account and not with a view to, or for resale in connection with, any distribution thereof in violation of applicable Canadian securities laws, the Securities Act, any state securities laws or the laws of any other jurisdiction. Other than as set forth in this Agreement, there are no other agreements, arrangements or understandings pursuant to which the Seller has agreed to acquire the Restricted Securities.
(vi) Within the six month period prior to the date any Restricted Securities are acquired, Seller has not, and will not, directly or indirectly execute or effect or cause to be executed or effected any short sale, option or equity swap transactions in or with respect to the Restricted Securities or any other derivative security transaction the purpose or effect of which is to hedge or transfer to a third party all or any part of the risk of loss associated with the ownership of the Restricted Securities by the Seller. The Seller has complied, and will comply, at all times with the provisions of Regulation M promulgated under the Securities Act as applicable to the Restricted Securities.
(vii) Seller understands that (A) the Restricted Securities are restricted securities within the meaning of Rule 144 under the Securities Act and have not been registered under the Securities Act, applicable Canadian securities laws, any state securities laws or the laws of any other jurisdiction, (B) the restricted securities can only be disposed of if such disposition is either registered under the Securities Act or is exempt from such registration, (C) the Restricted Securities will bear legends substantially similar to those set forth or described below, and (D) the Seller may be in possession of material non-public information concerning the Parent, the Buyer and their subsidiaries, their assets, operations and financial condition, and accordingly may be subject to liabilities under the Securities Exchange Act of 1934, as amended, if the Seller, its officers, directors, affiliates or controlling persons engage in trading in securities of the Parent while in possession of such material non-public information.
(viii) The Seller acknowledges that the certificates evidencing the Restricted Securities will bear a legend substantially similar to the following: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING OR OTHERWISE HOLDING SUCH SECURITIES, AGREES FOR THE BENEFIT OF TRANSATLANTIC PETROLEUM LTD. (THE “CORPORATION”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, (C) INSIDE THE UNITED STATES, PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OF THE UNITED STATES, OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OF THE UNITED STATES, AND THE HOLDER HAS FURNISHED TO THE CORPORATION AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION TO THE EFFECT THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.”
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction The Stock Purchase Warrant and Promissory Note are being sold pursuant to an exemption from registration set forth in acquired by the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired Seller solely for the his own account of the Vendor, solely for investment purposes and not with a view to resale the distribution or distributiontransfer thereof, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, Seller acknowledges and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration SharesStock Purchase Warrant and Promissory Note will bear a legend in substantially the following form:
(i) For Stock Purchase Warrant: NEITHER THIS STOCK PURCHASE WARRANT NOR THE COMMON STOCK ISSUABLE UPON EXERCISE OF THE STOCK PURCHASE WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, or any part thereofAS AMENDED, or any interest thereinOR UNDER ANY STATE SECURITIES ACT AND CANNOT BE SOLD, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferableTRANSFERRED, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite periodOR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER SUCH ACTS OR UNLESS EXEMPTIONS FROM REGISTRATION ARE AVAILABLE.
(6ii) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor inFor Promissory Note: THE PROMISSORY NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, and their commitments toAS AMENDED, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worthsOR UNDER ANY STATE SECURITIES ACT AND CANNOT BE SOLD, and the Vendor has the ability to bear the financial risk of an investment in PurchaserTRANSFERRED, OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER SUCH ACTS OR UNLESS EXEMPTIONS FROM REGISTRATION ARE AVAILABLE.
(7b) The Vendor will indemnify Seller represents and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting warrants as follows:
(i) from Seller confirms that Buyer has made available to him or to his representatives the sale or distribution opportunity to ask questions of any Consideration Shares by Buyer's officers and directors and to acquire such information about the Vendor in violation Stock Purchase Warrant and the Promissory Note and the business and financial condition of any applicable lawBuyer as Seller requested, rule or regulation, and which additional information has been received.
(ii) In deciding to acquire the Stock Purchase Warrant and Promissory Note pursuant to this Agreement, each Seller has consulted with his own respective legal, financial, and tax advisors with respect to the Agreement and the nature of the investment together with any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth hereinadditional information provided under subsection (i) above.
(8) The Vendor iii) Seller has adequate means of providing for his current needs and personal contingencies and has no need for liquidity in his investment in Buyer. Seller, either alone or with his representatives, has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the Agreement.
(iv) Each Seller understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity the investment in the United StatesStock Purchase Warrants and Promissory Notes is a speculative investment which involves a high degree of risk of loss of Seller's investment therein; that there are substantial restrictions on the transferability of the Stock Purchase Warrant and Promissory Note under the applicable provisions of the Securities Act and the rules and regulations promulgated thereunder and applicable state securities or "blue sky" laws; and, accordingly, that it may not be possible to liquidate an investment in the Stock Purchase Warrant or Promissory Note.
(v) Seller has been advised and understands that (i) the issuance of the Stock Purchase Warrant and Promissory Note has not been registered under the Securities Act; (ii) the Stock Purchase Warrant must be held indefinitely and the Seller must continue to bear the economic risk of the investment in the Stock Purchase Warrant until the offer or sale of the Stock Purchase Warrant is subsequently registered under the Securities Act or any other jurisdiction, has made any finding "blue sky" laws or determination an exemption from such registration is available; (iii) the Promissory Note is subject to Subordination Agreements and as such must be held until payment on such Promissory Note is permitted by the Subordination Agreements and the terms of such Promissory Note and the Seller must continue to bear the merits economic risk of the Consideration Shares, nor have any investment in the Promissory Note until such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement payment on the Promissory Note is permitted by the Subordination Agreements and the terms of such Promissory Note; (iv) Rule 144 promulgated under the Securities Act is not presently available with respect to the Consideration Shares.
(9) The Vendor representssale of any securities of Buyer, warrantsincluding the Stock Purchase Warrant and Promissory Note, and acknowledges that when and if the Stock Purchase Warrant or Promissory Note may be disposed of without registration in reliance on Rule 144, such disposition can be made only in accordance with the terms and conditions of such Rule; (v) the restrictive legends described in paragraph (a) shall be placed on the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general Stock Purchase Warrant and regular paid circulation, radio or television, Promissory Note; and (bvi) they did not attend any seminars or meetings regarding this transaction, a notation shall be made in which the attendees were invited by any general solicitation or general advertisingappropriate records of Buyer indicating that the Stock Purchase Warrant and Promissory Note are subject to restrictions on transfer.
Appears in 1 contract
Securities Representations. (1a) The Vendor acknowledges that Seller has such knowledge and experience in financial and business matters as to be capable of evaluating the Purchaser is a reporting company in Canada merits and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives risks of ownership of the Purchaser Stock and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared able to bear the economic risks risk of owning the Consideration Shares for an indefinite period.loss of its entire investment;
(4b) The Vendor acknowledges that (a) Seller is not acquiring the Consideration Shares are not being registered under Purchaser Stock with a view to any resale, distribution or other disposition of the laws Purchaser Stock in violation of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, amended (the "Securities Act"); ---
(c) and (b) Seller understands that the Purchaser Stock has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and been registered under the Securities Act.Act or the securities laws of any state and that the sale contemplated hereby is being made in reliance on an exemption from such registration requirements;
(5d) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.Seller:
(6i) The Vendor is knowledgeable an accredited investor within the meaning of Rule 501(a) of Regulation D under the Act; or
(ii) either alone or with Seller's "purchaser representative" (as such term is defined by Rule 501(h) of Regulation D under the Act) has such knowledge and experienced experience in making financial and business matters that Seller is capable of evaluating investments. The investments of the Vendor in, merits and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk risks of an investment in Purchaserthe Purchaser Stock.
(7e) The Vendor will indemnify Except as otherwise contemplated in this Agreement and hold Purchaserwithout in any way limiting the representations and warranties set forth above, its affiliates, Seller agrees not to make any disposition of all or any portion of the Purchaser Stock unless and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting until:
(i) from There is then in effect a registration statement under the sale or distribution of any Consideration Shares by the Vendor Act covering such proposed disposition and such disposition is made in violation of any applicable law, rule or regulation, and accordance with such registration statement; or
(ii) any misrepresentation by the Vendor The Purchaser shall be satisfied that such proposed disposition complies in all respects with SEC Rule 144 (or any breach of successor rule providing a safe harbor for such dispositions without registration), as well as any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no other applicable federal or state agencysecurities laws; or
(iii) The Purchaser shall have received, governmental authorityupon its reasonable request, regulatory body, stock exchange or other entity in an opinion of legal counsel for the United States, or any other jurisdiction, has made any finding or determination as holder of the Purchaser Stock satisfactory to the merits of the Consideration Shares, nor have any Purchaser stating that such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Sharestransaction is exempt from registration.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges UFF hereby represents and warrants to Compass as follows, recognizing that the Purchaser information contained herein is a reporting company being furnished to Compass in Canada order to induce Compass to enter into the Transactions. UFF understands that (a) Compass will rely on the information contained herein, (b) the Acquisition Shares will not be registered under the Act in reliance upon exemptions from registration afforded under the Act, which may include Regulation D promulgated thereunder ("Regulation D"), and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission (c) except as otherwise provided in the United States Registration Rights Agreement ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions as set forth in Section 6.8), the Public Information are subject to, and Acquisition Shares will not be registered and/or otherwise qualified in their entirety by, this Agreementunder any state securities laws.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents A. UFF is willing and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared able to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaserthe Acquisition Shares. UFF has adequate means of providing for current needs and contingencies, has no need for liquidity in the investment, and is able to bear the economic risk of an investment in Compass of the size contemplated. In making this statement, UFF considered whether UFF could afford to hold the Acquisition Shares for an indefinite period and whether, at this time, UFF could afford a complete loss of an investment in the Acquisition Shares.
(7) B. UFF's purchase of the Acquisition Shares will be solely for UFF's own account and not for the account of any other person.
C. The Vendor will indemnify Acquisition Shares are being acquired by UFF in good faith for investment and hold Purchaser, its affiliates, and representatives, harmless from and against not without a view to distributing such Acquisition Shares to others or otherwise reselling said Acquisition Shares or any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting portion thereof. UFF understands that the substance of the above representations is (i) from that UFF does not presently intend to sell or otherwise dispose of all or any part of the Acquisition Shares; (ii) that UFF does not now have in mind the sale or distribution other disposition of all or any part of the Acquisition Shares on the occurrence or nonoccurrence of any Consideration predetermined event; and (iii) that Compass is relying upon the truth and accuracy of the representations.
D. UFF understands that the purchase of the Acquisition Shares by is subject to risks as stated in the Vendor Due Diligence Materials (as hereinafter defined) or as otherwise may be applicable to similar investments.
E. UFF has reviewed the Due Diligence Materials and has engaged in violation an independent investigation of any applicable law, rule or regulationCompass, and (ii) any misrepresentation by the Vendor no oral or any breach of any warranties written representations beyond those representations set forth herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, Due Diligence Materials have been made to or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Sharesbeen relied upon by UFF.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Knowledge Holdings Inc)
Securities Representations. Each of Holders hereby represent and warrant to ONVC as follows: (1) The Vendor acknowledges that the Purchaser each of Holders may not qualify as an "Accredited Investor", as such term is a reporting company defined in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2Rule 501(a) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, amended (the "Securities Act") but each of Holders is acquiring the Restricted Shares for their own account without any view to or for their resale or distribution, all as et forth herein; (2) each of Holders' address as set forth on the Transfer Power is each of Holders' true and correct residence and each of Holders has no present intention of becoming a resident of any other state or jurisdiction; (b3) Purchaser the Restricted Shares are being acquired solely for each of Holders' own account, for investment, and are not being purchased with a view to or for the resale, distribution, subdivision, or fractionalization thereof and each of Holders has not furnished no present plans to enter into any contract, undertaking, agreement, or arrangement relating thereto; (4) each of Holders understands that none of the Vendor with all information that would Restricted Shares have been or will be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents , that each of Holders has no rights to require that the Consideration Restricted Shares will be acquired solely registered under the Securities Act or any state securities or blue sky laws; that each of Holders may have to hold the Restricted Shares for the account a substantial period of the Vendor, solely for investment purposes and not with a view to resale or distribution, time and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he it may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor each of Holders to liquidate each of Holders' investment in ONVC; and that in any event the Consideration Restricted Shares readily may not be assigned, transferred, pledged, or otherwise sold or offered for sale except pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from registration under the Securities Act, the availability of which must be established by each of Holders to the satisfaction of ONVC; and in case of an emergency and, replacement or exchange therefore, must are to bear a restrictive legend to this effect; (5) each of Holders is acquiring the financial risk Restricted Shares without being furnished any offering literature or prospectus, but each of owning the Consideration Shares investment for an indefinite period.
Holders has been granted, and is relying upon, each of Holders' personal discussions, investigations and due diligence of ONVC and its officers; (6) The Vendor each of Holders has such knowledge and experience in business and financial matters that each of Holders is knowledgeable capable of evaluating the business and experienced in making and evaluating investments. The investments financial matters of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, ONVC and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
risks and merits relating thereto; (7) The Vendor will indemnify and hold Purchaserthat there has never been any representation, guarantee, or warranty made to each of Holders by any broker, ONVC, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with agents or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United Statesemployees, or any other jurisdictionperson, has made any finding expressly or determination by implication, as to any gain or profit to be derived from, or the merits approximate or exact length of time that each of Holders may be required to remain an owner of, the Consideration Restricted Shares, nor have or as to any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Sharesmatter not expressly contained herein.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Sources: Acquisition Agreement (Online Vacation Center Holdings Corp)
Securities Representations. (1a) The Vendor acknowledges that Each Seller is acquiring the Purchaser is Buyer Units for its own account and not with a reporting company view to, or for offer of resale in Canada and connection with, a distribution thereof, within the United States and therefore files information with the Ontario Securities Commission and with meaning of the Securities and Exchange Commission in Act. In acquiring the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and Buyer Units, such Seller is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warrantiesnot offering or selling, and assumptions set forth will not offer or sell, for himself or itself in connection with any distribution of the Public Information are subject toBuyer Units, and qualified such Seller does not have a participation in their entirety by, this Agreementand will not participate in any such undertaking or in any underwriting of such an undertaking except in compliance with applicable federal and state securities Laws.
(2b) The Vendor Each Seller is an “accredited investor” as such term is defined under Regulation D promulgated under the Securities Act. Additionally, each Seller acknowledges that he or it is able to fend for itself, can bear the Purchaser has made available to it all requested documents and records economic risk of its investment in its possessionthe Buyer Units, and has offered such knowledge and experience in financial and business matters similar to the Vendor transaction described herein such that it is capable of evaluating the merits and risks of an opportunity to discuss this transaction with investment in the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such adviceBuyer Units.
(3c) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility Further, each Seller understands that such Consideration Shares Buyer Units will not have been registered pursuant to the Securities Act or any applicable state securities Laws, that the Buyer Units, when issued, will be characterized as “restricted securities” under federal securities Laws, and that under such Laws and applicable regulations the Buyer Units cannot be sold or otherwise disposed of without registration under the Securities Act or an exemption therefrom. Each such Seller represents that he or it is familiar with Rule 144 promulgated under the Securities Act, as currently in effect, and understands the resale limitations imposed thereby and by the Securities Act. Stop transfer instructions may become worthlessbe issued to the transfer agent for securities of the Buyer (or a notation may be made in the appropriate records of the Buyer) in connection with the Buyer Units issued hereunder. The Purchasers It is agreed and understood by such Seller that, should any certificate be issued representing any of the Buyer Units, each such certificate shall conspicuously set forth on the face or back thereof, in addition to any legends required by applicable Law or other agreement, a legend in substantially the following form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS THEY ARE FIRST REGISTERED PURSUANT TO THAT ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS EAGLE ROCK ENERGY PARTNERS, L.P. RECEIVES A WRITTEN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL ARE SATISFACTORY TO THE CORPORATION, TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED. Each Seller represents and acknowledges that Buyer is issuing the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold Buyer Units pursuant to an exemption from the registration set forth in requirements of the Securities Act of 1933, as amended, (based on the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have representations provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth hereinSellers hereunder.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Sources: Partnership Interests Purchase and Contribution Agreement (Eagle Rock Energy Partners L P)
Securities Representations. (1i) The Vendor acknowledges Sellers understand that any portion of the Purchaser is a reporting company in Canada and Purchase Price that may be comprised of the Common Stock will not, when issued, be registered under the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, amended (the "“Securities Act"”), or any United States state securities laws on the grounds that the issuance of the Common Stock is exempt from registration under such laws pursuant to Section 4(2) of the Securities Act and applicable state securities laws, and that the reliance of the Purchasers and S▇▇▇▇ on such exemptions is predicated in part on the representations, warranties, covenants and acknowledgments of the Sellers set forth in this Section.
(bii) Purchaser has not furnished the Vendor with all information The Sellers represent and warrant that would be included in the applicable registration statement if the Consideration Shares were offered and registered they are “accredited investors” or “sophisticated investors” as defined under the Securities Act.
(5iii) The Vendor represents Sellers represent and warrant that the Consideration Shares Common Stock to be acquired by the Sellers upon consummation of the transactions described in this Agreement will be acquired solely by them for the account of the Vendortheir own accounts, solely for investment purposes not as a nominee or agent, and not with without a view to resale or distributionother distribution within the meaning of the Securities Act and the rules and regulations thereunder, and that no other person has, or the Sellers will acquire, not distribute any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless Common Stock in violation of the Securities Act. Cid and until legal counsel for Purchaser shall have provided its written opinion Sahade acknowledge that the intended disposition does not violate certificates representing the law of any jurisdiction. The Vendor acknowledges that Common Stock shall bear restrictive legends in substantially the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite periodfollowing form: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) OR ANY STATE SECURITIES LAWS AND MAY ONLY BE SOLD OR OTHERWISE TRANSFERRED IF THE HOLDER HEREOF COMPLIES WITH THE ACT AND APPLICABLE SECURITIES LAWS.
(6iv) The Vendor is knowledgeable In addition, Cid and experienced in making and evaluating investments. The investments Sahade acknowledge that the Common Stock shall bear any legend required by the securities or “Blue Sky” laws of any state where the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in PurchaserSellers reside as well as any other legend deemed appropriate by S▇▇▇▇ or its counsel.
(7v) The Vendor will indemnify Sellers represent and hold Purchaser, its affiliates, warrant that the addresses set forth in the introductory paragraph of this Agreement are the Sellers’ principal residences.
(vi) Cid and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting Sahade acknowledge that (i) from the sale Common Stock issued to them may not be resold into or distribution through the United States Nasdaq Stock Market (the stock market on which the Common Stock is currently listed for trading) for a period of any Consideration Shares by one year after the Vendor in violation of any applicable law, rule or regulationdate hereof, and (ii) that, until the second anniversary of the date hereof, the Common Stock issued to them may only be resold into or through the United States Nasdaq Stock Market pursuant to Rule 144 under the Securities Act in limited amounts and in accordance with the terms and conditions of that Rule and that in such cases where Rule 144 is not applicable, compliance with some other exemption from the registration requirements of the Securities Act will be required in order for the Common Stock to be sold.
(vii) Cid and Sahade represent and warrant to the Purchasers and S▇▇▇▇ that they, either alone or together with the assistance of their professional advisors, have such knowledge and experience in financial and business matters such that they are capable of evaluating the merits and risks of their investment in any misrepresentation of the Common Stock to be acquired by them upon consummation of the Vendor or any breach transactions described in this Agreement.
(viii) Cid and Sahade acknowledge that they have had the opportunity to ask questions of any warranties herein or any covenants or agreements and receive answers from S▇▇▇▇ concerning the terms and conditions of their investment in the Common Stock, and they have received to their satisfaction, such additional information, in addition to that set forth herein.
(8) The Vendor understands , about the operations of S▇▇▇▇ and acknowledges the terms and conditions of the offering as they have requested. Cid and Sahade acknowledge that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in they have had full access to the reports of S▇▇▇▇ filed with the United StatesStates Securities and Exchange Commission, or any other jurisdictionincluding its most recent Form 10-Q Quarterly Report for the quarter ended March 31, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants2006, and acknowledges that (a) Form 10-K Annual Report for the Consideration Shares were not offered or distributed to year ended December 31, 2005, through the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertisingSEC’s website at w▇▇.▇▇▇.▇▇▇/▇▇▇-▇▇▇/▇▇▇▇▇▇-▇▇▇▇▇?▇▇▇▇▇▇=getcompany& CIK=0001010612&owner=include&count=40.
Appears in 1 contract
Securities Representations. (A) Each Shareholder hereby acknowledges receipt of (1) The Vendor acknowledges that Atria's quarterly report on Form 10-Q for the Purchaser is a reporting company in Canada quarter ending September 30, 1996, (2) the Registration Statement of Atria, dated July 29, 1996, on Form S-1, and (3) Atria's 8-K, dated September 10, 1996 (collectively, the United States and therefore files information with the Ontario "Securities Commission and with the Securities and Exchange Commission in the United States ("Public InformationDocuments"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(B) The Shareholder receiving Atria Shares represents that he (1) has received all the information it deems necessary concerning Atria to evaluate the transactions described in this Agreement, (2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possessionis acquiring Atria's Shares for his own account, and (3) has offered no present intention of dividing his interest in Atria's Shares with others or disposing of Atria's Shares in the absence of an opinion of counsel acceptable to Atria to the Vendor effect that Atria's Shares may be transferred without registration or unless the transfer of Atria's Shares is covered by an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such adviceeffective registration statement.
(3C) The Vendor has relied solely upon its own independent investigation in making a decision to sell Shareholder receiving Atria Shares represents that he is acquiring the Purchased Atria Shares for his own account for investment, and not with a view to the Consideration distribution or sale of Atria Shares and he is an accredited investor as defined in Rule 501 under the Securities Act. Such Shareholder has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the proposed investment in Atria Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares Such Shareholder understands that, except as may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange otherwise be provided in the United States and that there is only a limited market for "Registration Rights Agreement" (as defined in Section 5.8), such Shareholder's ability to dispose of the Consideration Atria Shares in the United States. The Vendor must therefore be prepared public market for such stock or otherwise is limited by the Securities Act, including Rule 144 promulgated thereunder, and, therefore, he may have to bear the economic risks risk of owning the Consideration his investment in such Atria Shares for an indefinite periodperiod of time.
(4D) The Vendor Shareholder receiving Atria Shares hereby acknowledges that (a) each certificate representing Atria Shares that are issuable to such Stockholder pursuant to this Agreement shall be stamped or otherwise imprinted with a legend substantially to the Consideration Shares are following effect: The securities represented by this certificate have not being been registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, amended (the "Securities Act") ), and (b) Purchaser has not furnished the Vendor with all information that would be included are "restricted securities" as defined in the applicable registration statement if the Consideration Shares were offered and registered Rule 144 promulgated under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he securities may not dispose of the Consideration Shares, be sold or any part thereof, offered for sale or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting otherwise distributed except (i) from in conjunction with an effective registration statement for the sale or distribution of any Consideration Shares by shares under the Vendor in violation of any applicable lawAct, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United Statescompliance with Rule 144, or (iii) pursuant to an opinion of counsel satisfactory to any other jurisdiction, has made any finding of the Acquired Companies that such registration or determination compliance is not required as to the merits of the Consideration Sharessuch sale, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges offer or other entities made any recommendation or endorsement with respect to the Consideration Sharesdistribution.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information In connection with the Ontario Securities Commission issuance to Sellers of the Purchaser’s Common Stock, the Sellers hereby agree, represent and with warrant as follows:
(a) Each Seller (collectively, the Securities and Exchange Commission in “Holders”) will acquire the United States ("Public Information"). The Vendor represents that it has reviewed Purchaser’s Common Stock solely for the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this AgreementHolder’s own account.
(2b) The Vendor acknowledges that Holders are aware of the Purchaser’s business affairs and financial condition and have acquired sufficient information about the Purchaser has made available to it all requested documents reach an informed and records in its possession, knowledgeable decision to acquire the Purchaser’s Common Stock. The Holders further represent and has offered to the Vendor an opportunity to discuss this transaction with warrant that Holders have discussed the Purchaser and/or representatives and its plans, operations and financial condition with its officers, has received all such information as Holders deem necessary and appropriate to enable Holders to evaluate the financial risk inherent in making an investment in the Purchaser’s Common Stock and have received satisfactory and complete information concerning the business and financial condition of the Purchaser and obtain any additional information necessary in response to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such adviceall inquiries in respect thereof.
(3c) The Vendor has relied solely upon its own independent investigation in making Holders realize that Holders’ acquisition of the Purchaser’s Common Stock will be a decision highly speculative investment, and Holders are able, without impairing Holders’ financial condition, to sell hold the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares Purchaser’s Common Stock for an indefinite periodperiod of time and to suffer a complete loss of Holders’ investment.
(4d) The Vendor acknowledges that Purchaser has disclosed to the Holders that: (ai) the Consideration Shares are sale of the Purchaser’s Common Stock has not being been registered under the laws Securities Act, and the Purchaser’s Common Stock must be held indefinitely unless a transfer of any jurisdiction and are being sold pursuant to them is subsequently registered under the Securities Act or an exemption from such registration set forth is available; and (ii) the Purchaser will make a notation in its records of the aforementioned restrictions on transfer.
(e) The Holders are aware of the provisions of Rule 144, promulgated under the Securities Act of 1933, as amended, which, in substance, permits limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer thereof (or an affiliate of such issuer), in a non-public offering subject to the "satisfaction of certain conditions, including among other things: the resale occurring not less than one year from the date the Holder has purchased and paid for the Purchaser’s Common Stock; the availability of certain public information concerning the Purchaser; the sale being through a broker in an unsolicited “broker’s transaction” or in a transaction directly with a market maker; and limitations on the amount of Purchaser’s Common Stock that may be sold during any three-month period. The Holders further represent that Holders understand that at the time Holders wish to sell the Purchaser’s Common Stock, there may be no public market upon which to make such a sale, and that, even if such a public market then exists, the Purchaser may not be satisfying the current public information requirements of Rule 144, and that, in such event, the Holders would be precluded from selling the Purchaser’s Common Stock under Rule 144 even if the one-year minimum holding period had been satisfied.
(f) Without in any way limiting the Holders’ representations and warranties set forth above, the Holders further agree that the Holders shall in no event make any disposition of all or any portion of the Purchaser’s Common Stock unless and until: (i) there is then in effect a Registration Statement under the Securities Act"Act covering such proposed disposition and such disposition is made in accordance with said Registration Statement; or (ii) the Holders shall have (1) notified the Purchaser of the proposed disposition and furnished the Purchaser with a detailed statement of the circumstances surrounding the proposed disposition, and (b2) Purchaser has not if reasonably requested by the Purchaser, furnished the Vendor Purchaser with all information an opinion of the Holder’s own counsel to the effect that would be included in the applicable such disposition will not require registration statement if the Consideration Shares were offered and registered of such shares under the Securities Act, and such opinion of the Holder’s counsel shall have been concurred in by counsel for the Purchaser, and the Purchaser shall have advised the Holders of such concurrence.
(5g) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting required (i) from to transfer on its books any Purchaser’s Common Stock of the sale Purchaser which shall have been sold or distribution of any Consideration Shares by the Vendor transferred in violation of any applicable law, rule of the provisions set forth in this Agreement or regulation, and (ii) to treat as owner of such Purchaser’s Common Stock or to accord the right to vote as such owner or to pay dividends to any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth hereintransferee to whom such Purchaser’s Common Stock shall have been so transferred.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or h) All certificates representing any other jurisdiction, has made any finding or determination as Purchaser’s Common Stock subject to the merits provisions of this Agreement shall have endorsed thereon the Consideration Sharesfollowing legend: “THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, nor have any such agenciesAS AMENDED, governmental authoritiesAND MAY NOT BE SOLD, regulatory bodiesTRANSFERRED, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration SharesASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.”
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada Each Initial Purchaser, severally and the United States not jointly, represents and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject warrants to, and qualified in their entirety byagrees with, this Agreement.the Issuers as of the Closing Date that:
(i) It is either: (A) a Qualified Institutional Buyer, (B) an institutional accredited investor (as such term is defined in Rule 501(a)(1), (2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession), and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
or (47) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
) or (5C) The Vendor represents that a non-U.S. Person (as such term is defined in Regulation S under the Consideration Shares Securities Act) and will be acquired solely not acquire the Securities for the account or benefit of any U.S. Person;
(ii) It is acquiring the VendorSecurities for its own account, solely for investment purposes only and not with a view to resale any distribution thereof that would not otherwise comply with the Securities Act;
(iii) It (A) understands that the Securities have not been registered under the Securities Act and that the Securities are being issued by the Issuers in transactions exempt from the registration requirements of the Securities Act and (B) agrees that neither all nor any part of the Securities may be offered or distributionsold except pursuant to effective registration statements under the Securities Act or pursuant to applicable exemptions from registration under the Securities Act and in compliance with applicable state laws;
(iv) It understands that the exemption from registration afforded by Rule 144 (the provisions of which are known to such Initial Purchaser) promulgated under the Securities Act depends on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts;
(v) Except as disclosed, it did not employ any broker or finder in connection with the transactions contemplated in this Agreement and no fees or commissions are payable to the Initial Purchasers (it being understood and agreed that no the Closing Payments do not constitute fees or commissions);
(vi) The source of funds to be used by such Initial Purchaser to pay the purchase price of the Securities does not include assets of any employee benefit plan (other person hasthan a plan exempt from the coverage of ERISA) or plan or any other entity the assets of which consist of “plan assets” of employee benefit plans or plans as defined in Department of Labor regulation Section 2510.3-101, or will acquireas amended by Section 3(42) of ERISA (the “Plan Asset Regulation”). As used in this clause (vi), any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge term “employee benefit plan” shall have the meaning assigned to such person, or anyone else, the Consideration Shares, or any interest thereinterm in Article 33 of ERISA, and the Vendor has no plans term “plan” shall have the meaning assigned thereto in Section 4975(e)(1) of the Code;
(vii) It either (A) is, and for so long as it holds any Securities, will be, a “venture capital operating company” or wholly owned by a “venture capital operating company” or (B) does not have, and for so long as it holds any Securities, will not have, “significant equity participation” by benefit plan investors pursuant to enter into any such contract, undertaking, agreement or arrangementthe Plan Asset Regulation. The Vendor understands that he term “venture capital operating company” shall have the meaning assigned to such term in the Plan Asset Regulation; and
(viii) The GS Purchasers will provide written notice (which notice may not dispose be given by email) to the Parent Issuer within 15 days of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments occurrence of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worthsGS Disposition Date, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
Ares Purchasers will provide written notice (7which notice may be given by email) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits Parent Issuer within 15 days of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to occurrence of the Consideration SharesAres Disposition Date.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Securities Representations. ▇▇▇▇▇ hereby makes the following representations and warranties to KDS, PCD and AMREP, and KDS, PCD and AMREP hereby make to ▇▇▇▇▇ the representation and warranty set forth in Section 3.3(f), each of which shall survive the closing of the transactions contemplated by this Agreement:
(1a) ▇▇▇▇▇ understands and agrees that the Settlement Shares are being offered and will be sold to it in transactions exempt from the registration requirements of the Securities Act of 1933 (the “Securities Act”), based in part upon ▇▇▇▇▇’▇ representations contained in this Agreement and, as a result, that the Settlement Shares may not be offered for sale, sold, transferred, pledged or hypothecated unless a registration statement under the Securities Act and applicable state securities laws shall be effective with respect thereto or an exemption from registration under the Securities Act and applicable state securities laws is available in connection with such offer, sale, transfer, pledge or hypothecation. ▇▇▇▇▇ must bear the economic risk of an investment in the Settlement Shares indefinitely unless such securities are registered pursuant to the Securities Act or an exemption from registration is available. ▇▇▇▇▇ understands that AMREP has no present intention or obligation to register the Settlement Shares. ▇▇▇▇▇ has been advised of or is aware of the provisions of Rule 144 promulgated under the Securities Act as in effect from time to time, which permits resale of securities purchased in a private placement subject to the satisfaction of certain conditions, including the availability of certain current public information about AMREP, the resale occurring following the required holding period under Rule 144 and, if ▇▇▇▇▇ is an AMREP affiliate, the number of securities being sold during any three month period not exceeding specified limitations.
(b) Based in part on advice of its counsel, ▇▇▇▇▇ is capable of evaluating the merits and risks of its investment in AMREP and has the capacity to protect its own interests.
(c) The Vendor acknowledges that the Purchaser is a reporting company in Canada Settlement Shares are being acquired for ▇▇▇▇▇’▇ own account and the United States and therefore files information not with the Ontario view to, or for resale in connection with, any distribution other than resales made in compliance with the Securities Commission and with Act. ▇▇▇▇▇ is an “accredited investor” within the meaning of Regulation D, Rule 501(a), promulgated by the Securities and Exchange Commission Commission. ▇▇▇▇▇ is aware of no publication of any advertisement in connection with the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth transactions contemplated in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2d) The Vendor ▇▇▇▇▇ acknowledges that the Purchaser it has made available received any information that it has requested for ▇▇▇▇▇ to it all requested documents and records in its possession, and make an investment decision. ▇▇▇▇▇ has offered to the Vendor had an opportunity to discuss this transaction AMREP’s business, management and financial affairs with AMREP and its representatives and has had the Purchaser and/or representatives opportunity to review AMREP’s operations and facilities. ▇▇▇▇▇ has also had the opportunity to ask questions of and receive answers from AMREP and its management regarding the terms and conditions of its acquisition of the Purchaser Settlement Shares. Except as expressly set forth in this Agreement, ▇▇▇▇▇ acknowledges and obtain agrees that no AMREP Person has made to ▇▇▇▇▇ any additional information necessary to verify other representation or warranty regarding the accuracy operations, business, prospects or condition (financial or otherwise) of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such adviceAMREP Person.
(3e) The Vendor ▇▇▇▇▇ has relied solely upon its own had full opportunity to seek the advice of independent investigation in making a decision to sell counsel respecting the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments transactions contemplated by this Agreement and the possibility that such Consideration Shares may become worthlesstax risks and implications thereof. The Purchasers acknowledges that ▇▇▇▇▇ maintains its domicile (and is not a transient or temporary resident) at the Consideration Shares are not traded on address shown in Section 14. Neither ▇▇▇▇▇ nor any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite periodits Affiliates own, directly or indirectly, any shares of common stock, par value $.10, of AMREP.
(4f) The Vendor acknowledges that (a) the Consideration Shares There are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933no claims for brokerage commission, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale finders’ fees or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, similar compensation in connection with the transactions contemplated by this Agreement or resulting (i) from the sale related documents based on any arrangement or distribution of agreement binding upon any Consideration Shares by the Vendor in violation of any applicable law, rule ▇▇▇▇▇ Person or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth hereinAMREP Person.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Sources: Settlement Agreement (Amrep Corp.)
Securities Representations. (1a) The Vendor acknowledges Sellers acknowledge and agree that the Purchaser is a reporting company Buyer Shares will bear one or more of the following legends, as appropriate:
(i) SELLER UNDERSTANDS THE SPECULATIVE NATURE OF AND RISK INVOLVED IN RECEIVING BUYER SHARES (AS DEFINED THEREIN) AS CONSIDERATION UNDER THE SHARE PURCHASE AGREEMENT, DATED APRIL 12, 2022; and/or
(ii) THE BUYER SHARES (AS DEFINED IN THE SHARE PURCHASE AGREEMENT, DATED APRIL 12, 2022 (THE “SPA”)) RECEIVED BY SELLER AS CONSIDERATION UNDER THE SPA WERE ISSUED TO IT IN RELIANCE ON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF UNITED STATES FEDERAL AND STATE SECURITIES LAWS UNDER REGULATION S PROMULGATED UNDER THE SECURITIES ACT (“REGULATION S”) AND THAT BUYER IS RELYING UPON THE TRUTH AND ACCURACY OF THE REPRESENTATIONS, WARRANTIES, AGREEMENTS, ACKNOWLEDGMENTS AND UNDERSTANDINGS OF EACH SELLER SET FORTH THEREIN IN ORDER TO DETERMINE THE APPLICABILITY OF SUCH EXEMPTIONS AND THE SUITABILITY OF EACH SELLER TO ACQUIRE THE BUYER SHARES.
(b) If Seller has chosen to do so, Seller has been represented by such legal and tax counsel and other professionals, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the receipt of Buyer Shares, and such representation has included an examination of all applicable documents and an analysis of all tax, financial, and securities law aspects thereof deemed to be necessary. Seller, together with Seller’s counsel, Seller’s advisors, and such other Persons, if any, with whom Seller has found it necessary or advisable to consult, have sufficient knowledge and experience in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions financial matters to evaluate the information set forth in the Public Information are subject toTransaction Documents and the risks associated with the Buyer Shares and to make an informed decision with respect thereto. Further, Seller has been given the opportunity for a reasonable time period prior to the date hereof to ask questions of, and qualified in their entirety byreceive answers from, this Agreement.
(2) The Vendor acknowledges that Buyer, or its representatives concerning the Purchaser has made available to it all requested documents and records in its possession, Buyer Shares and has offered been given the opportunity for a reasonable time period prior to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary date hereof to verify the accuracy thereof.
(c) With respect to the United States federal, state and foreign tax aspects of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investmentSeller’s receipt of Buyer Shares hereunder, accounting, legal or tax advice. The Vendor Seller is relying solely upon itself and its professional the advice of Seller’s own tax advisors, if any, for such adviceand/or upon Seller’s own knowledge with respect thereto.
(3d) The Vendor Seller has relied solely upon its own independent investigation in making a decision not relied, and will not rely upon, any information with respect to sell Buyer Shares other than the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments information contained herein and the possibility information that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite periodpublicly available.
(4e) The Vendor acknowledges Seller understands that (a) no Person has been authorized to make representations or to give any information or literature with respect to Buyer Shares that is inconsistent with the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration information that is set forth herein or that is publicly available.
(f) Seller understands that, other than as provided herein, no covenants, representations or warranties have been authorized by or will be binding upon Buyer, with regard to the Buyer Shares.
(g) Such Seller is either:
(i) a “sophisticated investor” (as described in the Securities Act Rule 506(b)(2)(ii) of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered Regulation D promulgated under the Securities Act.) and/or an “accredited investor” (as defined in Rule 501 of Regulation D promulgated under the Securities Act), such Seller is a “sophisticated investor” and/or an “accredited investor,” as applicable; or
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity 1) not a U.S. Person (as defined in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.17 CFR 230.902(k); and
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) Parent is an "accredited investor" within the Consideration Shares are not being registered under meaning of the laws Securities Act. Parent has knowledge and experience in financial and business matters such that it is capable of any jurisdiction evaluating the merits and are being sold pursuant to an exemption from registration set forth risks of the investment in the Securities Act of 1933, as amended, SatCon Shares and is financially able to undertake the risks involved in such an investment. Parent understands that (i) the "Securities Act") and (b) Purchaser has SatCon Shares have not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and been registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and state securities law by reason for their issuance in a transaction exempt from the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose registration requirements of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor Securities Act pursuant to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expensesSection 4(2) and claims arising out of, in connection with or resulting (i) from Regulation D promulgated thereunder and an exemption under the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, state securities law and (ii) any misrepresentation by such SatCon Shares must be held indefinitely unless a registration statement covering the Vendor resale of such shares is effective under the Securities Act and such state law or any breach of any warranties herein or any covenants or agreements set forth hereinunless an exemption from registration under the Securities Act and such state law is available.
(8) b) Parent agrees that SatCon Shares shall not be sold or transferred unless either (i) they first shall have been registered under the Securities Act, or (ii) the Buyer first shall have been furnished with an opinion of legal counsel, reasonably satisfactory to the Parent and which may be counsel to the Buyer, to the effect that such sale or transfer is exempt from the registration requirements of the Securities Act. The Vendor understands SatCon Shares may be pledged and acknowledges transferred to Key Bank, N.A. in connection with the Parent's credit facility. Each certificate representing SatCon Shares shall bear a legend substantially in the following form: "The securities represented by this certificate have not been registered under the Securities Act of 1922, as amended, and may not be offered, sold or otherwise transferred, pledged or hypothecated without the consent of SatCon Technology Corporation and unless and until such securites are registered under such Act or an opinion of counsel satisfactory to SatCon Technology Cororation is obtained to the effect that no federal or state agency, governmental authority, regulatory body, stock exchange such registration is not required."
(c) The Buyer has granted the Parent and its attorneys or other entity in representatives access to all information about the United StatesBuyer which Parent has requested; and the Parent has had the opportunity to ask questions of, or any other jurisdictionand receive answers from, has made any finding or determination as to the merits representatives of the Consideration SharesBuyer to ask questions of, nor have any and receive answers from, representatives of the Buyer concerning such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to information and the Consideration SharesBuyer's financial condition and prospects.
(9d) The Vendor representsprincipal office of the Parent and the place at which the decision by the Parent to participate in this Agreement and the transactions contemplated hereby was made is located in New York. Any information furnished in the schedules of the Parent, warrantsCompany or U.K. Subsidiary (a "Disclosure Schedule") shall be deemed to modify all of the Parent's representations and warranties. The inclusion of any information in the Disclosure Schedule shall not be deemed to be an admission or acknowledgment, in and of itself, that such information is required by the terms hereof to be disclosed, is material to the Disclosure Schedule, has or would have a material adverse effect. For purposes of this Agreement, the terms "to the best of the Company's knowledge," "to the best of the Parent's knowledge," "known by the Company," "known to the Parent" or other words of similar meaning shall mean the actual knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇▇ without any obligation of investigation, and acknowledges that (a) the Consideration Shares were shall not offered or distributed refer to the Vendor through an advertisement in printed media knowledge of general and regular paid circulation, radio any other person or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertisingentity.
Appears in 1 contract
Sources: Stock Purchase Agreement (Mechanical Technology Inc)
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada Lender hereby represents and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered warrants to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges Borrower that (ai) the Consideration Shares are not being registered it is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D promulgated under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amendedamended (the “Securities Act”), (ii) it understands that the "Securities Act"Note and the shares underlying the Note (collectively, the “Securities”) and (b) Purchaser has have not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and been registered under the Securities Act.
(5) The Vendor Act by reason of a claimed exemption under the provisions of the Securities Act that depends, in part, upon the Lender’s investment intention; in this connection, the Lender hereby represents that it is purchasing the Consideration Shares will be acquired solely Securities for the Lender’s own account of the Vendor, solely for investment purposes and not with a view to toward the resale or distributiondistribution to others, (iii) the Lender, if an entity, further represents that it was not formed for the purpose of purchasing the Securities, (iv) the Lender acknowledges that the issuance of the Note has not been reviewed by the United States Securities and that no other person hasExchange Commission (the “SEC”) nor any state regulatory authority since the issuance of the Note is intended to be exempt from the registration requirements of Section 4(2) of the Securities Act and Rule 506 of Regulation D, or will acquire, any direct or indirect interest in (v) the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person Lender agrees not to sell, pledge, assign or otherwise transfer or pledge to dispose of the Securities unless they are registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such personregistration is available, or anyone elseand (vi) the Lender acknowledges receipt and careful review of the Note, the Consideration SharesBorrower’s filings with the SEC (including, or without limitation, any interest risk factors included in the Borrower’s Annual Report on Form 10-K for year ended December 31, 2011), and any documents which may have been made available upon request as reflected therein, and hereby represents that it has been furnished by the Vendor has no plans to enter into any such contractBorrower with all information regarding the Borrower, undertaking, agreement or arrangement. The Vendor understands that he may not dispose the terms and conditions of the Consideration Shares, or purchase and any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion additional information that the intended disposition does not violate Borrower has requested or desired to know, and has been afforded the law opportunity to ask questions of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments receive answers from duly authorized officers or other representatives of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, Borrower concerning the Borrower and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify terms and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits conditions of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Sharespurchase.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Securities Representations. In addition to the other representations made in Sections 3 and 4 hereof, Buyer and Seller herby represent and warrant to the other as follows:
(1a) The Vendor Each acknowledges that the Purchaser is a reporting company in Canada Interest, the Warrant and the United States shares issuable upon exercise of the Warrant (the "Warrant Shares"), as applicable, are and therefore files information will be acquired solely by and for the receiving party for investment and not as a nominee or agent for the benefit of any other person or entity, and each has no current intention of distributing, reselling or assigning any of the Interest or Warrant, as applicable, other than in accordance with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives provisions of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, amended (the "Securities 1933 Act") ), and the rules and regulations adopted by the SEC under the 1933 Act and any other applicable laws.
(b) Purchaser Each understands that none of the Interest, the Warrant or the Warrant Shares, as applicable, has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and been registered under the Securities Act1933 Act and that neither RI nor RadNet, Inc. is under obligation to register or assist Buyer or Seller, as applicable, in registering the Interest, the Warrant or the Warrant Shares, as applicable. Buyer and Seller each further understands and agrees that the Interest, the Warrant and the Warrant Shares, as applicable, must be held indefinitely unless subsequently registered under the 1933 Act or any exemption from registration under the 1933 Act covering any sale of the Interest, the Warrant or the Warrant Shares, as applicable, is available. Each understands that legends reflecting these restrictions on transferability will be set forth on any certificates evidencing the Interest, the Warrant or the Warrant Shares, as applicable.
(5c) The Vendor represents Each is aware that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from its investment in the sale or distribution Interest, the Warrant and the Warrant Shares, as applicable, involves a possible degree of any Consideration Shares by the Vendor in violation risk, lack of any applicable law, rule or regulation, liquidity and substantial restriction on transferability and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, agency has made any finding or determination as to the merits of the Consideration Sharesfairness for investment in, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement of the Interest, the Warrant or the Warrant Shares, as applicable.
(d) Each has sufficient financial resources available to support the loss of all or a portion of the investment in the Interest, the Warrant or the Warrant Shares, as applicable, has no need for liquidity with respect to its investment in the Consideration Interest, the Warrant or the Warrant Shares, as applicable, and is able to bear the economic risk of the investment.
(9e) The Vendor representsBuyer and Seller are each sophisticated and experienced in financial, warrantsbusiness and investment matters, are in the same business as RI and acknowledges that (a) as a result of financial information received from RI and RadNet, Inc. are aware of RI's or RadNet, Inc.'s financial condition and business affairs and, based thereon, each is in a position to evaluate the Consideration Shares were not offered merits and risks of an investment in the Interest , the Warrant or distributed to the Vendor through an advertisement in printed media of general and regular paid circulationWarrant Shares, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertisingas applicable.
Appears in 1 contract
Sources: Purchase Agreement (RadNet, Inc.)
Securities Representations. (1) The Vendor acknowledges that Upon the Purchaser is a reporting company in Canada and exercise of the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered Option prior to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold registration pursuant to an exemption from registration set forth in the Securities Act of 1933the Common Stock subject to the Option, as amendedthe Participant will be deemed to acknowledge and make the following representations and warranties and any issuances of Common Stock by the Company shall be made in reliance upon the following express representations and warranties of the Participant:
(a) shares of the Common Stock are being acquired for the Participant's own account and not with a view to, (or for sale in connection with, the "Securities Act") and distribution thereof, nor with any present intention of distributing or selling any of such shares of Common Stock;
(b) Purchaser the Participant has been advised that the shares of Common Stock have not furnished been registered under the Vendor with all information Securities Act on the ground that would no distribution or public offering of the shares of Common Stock is to be included effected (it being understood, however, that the shares of Common Stock are being issued and sold in reliance on the exemption provided under Rule 701 under the Securities Act), and in this connection the Company is relying in part on the Participant's representations set forth in this Section;
(c) in the applicable event that the Participant is permitted to Transfer or otherwise dispose of the shares of Common Stock, the Participant may only do so pursuant to a registration statement under the Securities Act and qualification under applicable state securities laws or pursuant to an opinion of counsel satisfactory to the Company that such registration and qualification are not required, and that the transaction (if it involves a sale in the Consideration Shares were offered over-the-counter market or on a securities exchange) does not violate the provisions of Rule 144 under the Securities Act. A stop-transfer order will be placed on the books of the Company respecting the certificates evidencing the shares of Common Stock, and such certificates shall bear any required legends, until such time as the shares of Common Stock evidenced by such certificates shall have been registered under the Securities Act or shall have been Transferred in accordance with an opinion of counsel for the Company that such registration is not required;
(d) the Transfer of the shares of Common Stock have not been registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has shares of Common Stock must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available and the Company is under no plans obligation to enter into any such contract, undertaking, agreement or arrangement. The Vendor register the shares of Common Stock; and
(e) the Participant understands that he may not dispose the shares of Common Stock acquired upon exercise of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion Option are restricted securities within the meaning of Rule 144 promulgated under the Securities Act; that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it exemption from registration under Rule 144 will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting available unless (i) from a public trading market then exists for the sale or distribution of any Consideration Shares by Common Stock, (ii) adequate information concerning the Vendor in violation of any applicable law, rule or regulationCompany is then available to the public, and (iiiii) any misrepresentation by the Vendor other terms and conditions of Rule 144 or any breach of exemption therefrom are complied with; and that any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits sale of the Consideration Shares, nor have any shares of Common Stock may be made only in limited amounts in accordance with such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Sharesterms and conditions.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that Upon the Purchaser is a reporting company in Canada and vesting of the United States and therefore files information with RSUs prior to the Ontario Securities Commission and with registration of any Shares to be issued hereunder pursuant to the Securities Act or other applicable securities laws, the Employee shall be deemed to acknowledge and Exchange Commission in make the United States ("Public Information"). The Vendor represents that it has reviewed following representations and warranties and as otherwise may be reasonably requested by the Public Information and is fully familiar Company for compliance with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warrantiesapplicable laws, and assumptions set forth any issuances of Shares by the Company hereunder shall be made in reliance upon the Public Information are subject to, express representations and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives warranties of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.Employee:
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) The Employee is acquiring and will hold the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely issued hereunder for investment for the Employee’s account of the Vendor, solely for investment purposes only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act or other applicable securities laws.
(b) The Employee has been advised that the Shares to resale be issued hereunder have not been registered under the Securities Act or distributionother applicable securities laws, on the ground that no distribution or public offering of such Shares is to be effected (it being understood, however, that such Shares are being issued and sold in reliance on the exemption provided under Rule 701 under the Securities Act), and that no other person hassuch Shares must be held indefinitely, unless they are subsequently registered under the applicable securities laws or will acquirethe Employee obtains an opinion of counsel (in form and substance reasonably satisfactory to the Company and its counsel) that registration is not required. In connection with the foregoing, any direct or indirect interest the Company is relying in part on the Consideration SharesEmployee’s representations set forth in this Section 5. The Vendor has Employee further acknowledges and understands that the Company is under no contractobligation hereunder to register the Shares to be issued hereunder.
(c) The Employee is aware of the adoption of Rule 144 by the United States Securities and Exchange Commission under the Securities Act, undertakingwhich permits limited public resales of securities acquired in a non-public offering, agreement or arrangement subject to the satisfaction of certain conditions. The Employee acknowledges that the Employee is familiar with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest thereinconditions for resale set forth in Rule 144, and acknowledges and understands that the Vendor conditions for resale set forth in Rule 144 have not been satisfied and that the Company has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of satisfy these conditions in the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite periodforeseeable future.
(6d) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor inEmployee has been furnished with, and their commitments has had access to, all non-liquid investments (including an investment such information as the Employee considers necessary or appropriate for deciding whether to invest in Purchaser) are reasonable in relation the Shares to their respective net worthsbe issued hereunder, and the Vendor Employee has the ability had an opportunity to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify ask questions and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) receive answers from the sale or distribution of any Consideration Shares by Company regarding the Vendor in violation of any applicable law, rule or regulation, terms and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits conditions of the Consideration Shares, nor have any issuance of such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9e) The Vendor represents, warrants, Employee is aware that an investment in the Company is a speculative investment that has limited liquidity and acknowledges that (a) the Consideration Shares were not offered or distributed is subject to the Vendor through risk of complete loss. The Employee is able, without impairing the Employee’s financial condition, to hold the Shares to be issued hereunder for an advertisement indefinite period and to suffer a complete loss of the Employee’s investment in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertisingsuch Shares.
Appears in 1 contract
Sources: Restricted Stock Unit Award Agreement (Contura Energy, Inc.)
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction The Stock Purchase Warrants and Promissory Notes are being sold pursuant to an exemption from registration set forth in acquired by the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired Sellers solely for the their own account of the Vendor, solely for investment purposes and not with a view to resale the distribution or distributiontransfer thereof, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, Sellers acknowledge and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion understand that the intended disposition does not violate Stock Purchase Warrants and Promissory Notes will bear a legend in substantially the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferablefollowing form:
(i) For Stock Purchase Warrants: NEITHER THIS STOCK PURCHASE WARRANT NOR THE COMMON STOCK ISSUABLE UPON EXERCISE OF THE 29 STOCK PURCHASE WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency andAS AMENDED, thereforeOR UNDER ANY STATE SECURITIES ACT AND CANNOT BE SOLD, must bear the financial risk of owning the Consideration Shares investment for an indefinite periodTRANSFERRED, OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER SUCH ACTS OR UNLESS EXEMPTIONS FROM REGISTRATION ARE AVAILABLE.
(6ii) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor inFor Promissory Notes: THE PROMISSORY NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, and their commitments toAS AMENDED, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worthsOR UNDER ANY STATE SECURITIES ACT AND CANNOT BE SOLD, and the Vendor has the ability to bear the financial risk of an investment in PurchaserTRANSFERRED, OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER SUCH ACTS OR UNLESS EXEMPTIONS FROM REGISTRATION ARE AVAILABLE.
(7b) The Vendor will indemnify Sellers represent and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting warrant as follows:
(i) from Sellers confirm that Buyer has made available to him or to his representatives the sale or distribution opportunity to ask questions of any Consideration Shares by Buyer's officers and directors and to acquire such information about the Vendor in violation Stock Purchase Warrants and the Promissory Notes and the business and financial condition of any applicable lawBuyer as Sellers requested, rule or regulation, and which additional information has been received.
(ii) In deciding to acquire the Stock Purchase Warrants and Promissory Notes pursuant to this Agreement, each Seller has consulted with his own respective legal, financial, and tax advisors with respect to the Agreement and the nature of the investment together with any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth hereinadditional information provided under subsection (i) above.
(8) The Vendor iii) Sellers have adequate means of providing for their current needs and personal contingencies and has no need for liquidity in his investment in Buyer. Sellers, either alone or with their representatives, have such knowledge and experience in financial and business matters that they are capable of evaluating the merits and risks of the Agreement.
(iv) Each Seller understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity the investment in the United StatesStock Purchase Warrants and Promissory Notes is a speculative investment which involves a high degree of risk of loss of Seller's investment therein; that there are substantial restrictions on the transferability of the Stock Purchase Warrants and Promissory Notes under the applicable provisions of the Securities Act and the rules and regulations promulgated thereunder and applicable state securities or "blue sky" laws; and, accordingly, that it may not be possible to liquidate an investment in the Stock Purchase Warrants or Promissory Notes.
(v) Sellers have been advised and understand that (i) the issuance of the Stock Purchase Warrants and Promissory Notes has not been registered under the Securities Act; (ii) the Stock Purchase Warrants must be held indefinitely and the Sellers must continue to bear the economic risk of the investment in the Stock Purchase Warrants until the offer or sale of the Stock Purchase Warrants is subsequently registered under the Securities Act or any other jurisdiction, has made any finding "blue sky" laws or determination an exemption from such registration is available; (iii) the Promissory Notes are subject to Subordination Agreements and as such must be held until payment on such Promissory Notes are permitted by the Subordination Agreements and the terms of such Promissory Notes and the Sellers must continue to bear the merits economic risk of the Consideration Shares, nor have any investment in the Promissory Notes until such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement payment on the Promissory Notes is permitted by the Subordination Agreements and the terms of such Promissory Notes; (iv) Rule 144 promulgated under the Securities Act is not presently available with respect to the Consideration Shares.
(9) The Vendor representssale of any securities of Buyer, warrantsincluding the Stock Purchase Warrants and Promissory Notes, and acknowledges that when and if the Stock Purchase Warrants or Promissory Notes may be disposed of without registration in reliance on Rule 144, such disposition can be made only in accordance with the terms and conditions of such Rule; (v) the restrictive legends described in paragraph (a) shall be placed on the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general Stock Purchase Warrants and regular paid circulation, radio or television, Promissory Notes; and (bvi) they did not attend any seminars or meetings regarding this transaction, a notation shall be made in which the attendees were invited by any general solicitation or general advertisingappropriate records of Buyer indicating that the Stock Purchase Warrants and Promissory Notes are subject to restrictions on transfer.
Appears in 1 contract
Securities Representations. (1i) The Vendor acknowledges that the Purchaser Parent is a reporting company issuer under Applicable Securities Legislation in Canada at least one of the Reporting Jurisdictions and its Common Shares are listed for trading on the United States TSX;
(ii) the Parent has complied and therefore files information will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the Ontario Securities Commission issuance of the Lender Warrants;
(iii) No order or ruling suspending the sale or ceasing the trading in any securities of the Parent has been issued (and with has not been revoked or otherwise expired) by any securities regulatory authority or, to the Securities and Exchange Commission in best knowledge of the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and Credit Parties, is fully familiar with Purchaser's current business and future prospects. All statementspending, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreementcontemplated or threatened by any securities regulatory authority.
(2iv) The Vendor acknowledges that the Purchaser Parent is not in default of any Applicable Securities Legislation or the TSX Rules nor is it included in a list of defaulting reporting issuers maintained by any securities commissions where the Parent is a reporting issuer or other securities regulatory authorities in the provinces and territories of Canada;
(v) no order ceasing, halting or suspending trading nor prohibiting the sale of Common Shares has made available been issued to it all requested documents and records in is outstanding against the Parent or its possessionDirectors, and has offered officers or promoters and, to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives best of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that Parent’s knowledge, no information furnished by the Purchaser constitutes investment, accounting, legal investigation or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, proceedings for such advice.purposes are pending or threatened;
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (avi) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth Parent has complied in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor all material respects with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendorrequirements of National Instrument 43-101, solely for investment purposes and not with a view to resale or distributionincluding without limitation, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.preparation and filing of any technical reports;
(9vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Vendor represents, warrantsCommon Shares to be issued to the Lender upon the exercise of the Lender Warrants are and will be duly and validly authorized and reserved for issuance to the Lender, and acknowledges that upon the exercise of the Lender Warrants, such Common Shares will be duly authorized, validly issued as fully paid and non-assessable shares in the capital of the Parent, and the Lender will be the legal and registered owner of such Common Shares and will have good title thereto free and clear of all Liens arising by, through or under the Parent or its Subsidiaries. The Lender Warrants and Common Shares have been or will be, as applicable, offered, issued, sold and delivered to the Lender in compliance with all Applicable Securities Legislation; and
(aviii) the Consideration first trade of the Lender Warrants or the Common Shares acquired upon the exercise thereof by the holder thereof will be exempt from the prospectus requirements of the Applicable Securities Legislation provided that:
(A) the Parent is and has been a reporting issuer in a jurisdiction of Canada for at least four months immediately preceding the date of such trade;
(B) at least four months have elapsed from the distribution date (as defined in National Instrument 45-102) of the Lender Warrants;
(C) certificates representing the Lender Warrants issued on or within four months after the Effective Date, were issued with a legend stating the prescribed restricted period in accordance with Section 2.5 of National Instrument 45-102;
(D) such trade is not offered a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or distributed to create a demand for the Vendor through securities that are the subject of the trade;
(F) no extraordinary commission or consideration is paid to a Person in respect of such trade; and
(G) if the selling security holder is an advertisement insider or officer of the Parent, the selling security holder has no reasonable grounds to believe that the Parent is in printed media default of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertisingApplicable Securities Legislation.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Atna Resources LTD)
Securities Representations. (1) The Vendor acknowledges Lender understands and agrees that the Purchaser is a reporting company in Canada consummation of this Agreement including entering into the Note as contemplated hereby, constitutes the offer and the United States and therefore files information with the Ontario Securities Commission and with sale of securities under the Securities Act. Lender agrees that such transactions shall be consummated in reliance on exemptions from the registration and Exchange Commission prospectus delivery requirements of such statutes which depend, among other items, on the circumstances under which such securities are acquired. In order to provide documentation for reliance upon exemptions from the registration and prospectus delivery requirements for such transactions Lender agrees that it will sign appropriate representations and warranties related to its suitability to invest in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information Company, including an investment letter and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth suitability questionnaire which are contained in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges “suitability letter” attached hereto as appendix “A.” Lender understands that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser Note has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and been registered under the Securities Act.
(5) Act and must be held indefinitely without any transfer, sale, or other disposition unless such shares are subsequently registered under the Securities Act or registration is not required under the Securities Act in reliance on an available exemption. The Vendor represents that Note to be received by the Consideration Shares Lender under the terms of this Agreement will be acquired solely for the account of the VendorLender’s own account, solely for investment purposes investment, and not with a view to the present intention of resale or distribution, and distribution of all or any part of the securities. Lender agrees that no other person has, he will refrain from transferring or will acquire, any direct or indirect interest in otherwise disposing of the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration SharesNote, or any interest therein, in such manner as to violate the Securities Act or any applicable state securities law regulating the disposition thereof. Lender is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act and the Vendor has adequate means for providing for his current needs and possible personal contingencies and has no plans need now and anticipates no need in the foreseeable future to enter into any such contract, undertaking, agreement sell the Note or arrangementhave it repaid prior to its maturity date. The Vendor Lender understands that he may not dispose Note is being entered into in reliance on specific exemptions from the registration requirements of the Consideration Shares, or any part thereof, or any interest therein, unless Federal and until legal counsel for Purchaser shall have provided its written opinion state securities laws and that the intended disposition does not violate Company is relying upon the law truth and accuracy of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferableLender’s representations, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency andwarranties, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor inagreements, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements understandings set forth hereinherein to determine Lender’s suitability to loan the Company the funds and accept the Note.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Sources: Loan Agreement (Nu-Med Plus, Inc.)
Securities Representations. (1) The Vendor Each Contributor is acquiring the Contributee Units for its own account and not with a view to, or for offer of resale in connection with, a distribution thereof, within the meaning of the Securities Act. In acquiring the Contributee Units, such Contributor is not offering or selling, and will not offer or sell, for itself in connection with any distribution of the Contributee Units, and such Contributor does not have a participation in and will not participate in any such undertaking or in any underwriting of such an undertaking except in compliance with applicable federal and state securities Laws. Each Contributor is an “accredited investor” as such term is defined under Regulation D promulgated under the Securities Act. Additionally, each Contributor acknowledges that it is able to fend for itself, can bear the Purchaser economic risk of its investment in the Contributee Units, and has such knowledge and experience in financial and business matters similar to the transaction described herein such that it is a reporting company capable of evaluating the merits and risks of an investment in Canada and the United States and therefore files information with the Ontario Securities Commission and with Contributee Units. Further, each Contributor understands that such Contributee Units will not have been registered pursuant to the Securities Act or any applicable state securities Laws, that the Contributee Units, when issued, will be characterized as “restricted securities” under federal securities Laws, and Exchange Commission in that under such Laws and applicable regulations the United States ("Public Information")Contributee Units cannot be sold or otherwise disposed of without registration under the Securities Act or an exemption therefrom. The Vendor Each Contributor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statementsRule 144 promulgated under the Securities Act, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warrantiesas currently in effect, and assumptions understands the resale limitations imposed thereby and by the Securities Act. Stop transfer instructions may be issued to the transfer agent for securities of the Contributee (or a notation may be made in the appropriate records of the Contributee) in connection with the Contributee Units issued hereunder. It is agreed and understood by each Contributor that, should any certificate be issued representing any of the Contributee Units, each such certificate shall conspicuously set forth on the face or back thereof, in addition to any legends required by applicable Law or other agreement, a legend in substantially the Public Information are subject tofollowing form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS THEY ARE FIRST REGISTERED PURSUANT TO THAT ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS EAGLE ROCK ENERGY PARTNERS, L.P. RECEIVES A WRITTEN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL ARE SATISFACTORY TO THE CORPORATION, TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED. Each Contributor represents and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that Contributee is issuing the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold Contributee Units pursuant to an exemption from the registration set forth in requirements of the Securities Act of 1933, as amended, (based on the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Actrepresentations provided by such Contributor hereunder.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Sources: Partnership Interests Contribution Agreement (Eagle Rock Energy Partners L P)
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws The shares of any jurisdiction and common stock of Acquisition are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes Shareholders and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, sale in connection with or resulting (i) from the sale or any distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.Acquisition common stock;
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend Each of the Shareholders is acquiring the Acquisition common stock hereunder without having received any seminars or meetings regarding this transaction, in which the attendees were invited by any form of general solicitation or general advertising;
(c) Each of the Shareholders or his representative, if any, have been provided with, or given reasonable access to, full and fair disclosure of all material information concerning Acquisition;
(d) Each of the Shareholders has a preexisting personal or business relationship with Acquisition or certain of its officers, directors or controlling persons, or by reason of its business or financial experience, each of the Shareholders could reasonably be assumed to have the capacity to represent his own interests in connection with this Agreement;
(e) Each of the Shareholders understands and hereby acknowledges that the Acquisition common stock will be issued pursuant only to those restrictions imposed by and exemptions available pursuant to applicable federal and state laws and that the certificates to be issued in respect of the Acquisition common stock may bear a legend in a form satisfactory to counsel for Acquisition; in part, Acquisition's reliance upon such exemptions is based on the representations and warranties made by Shareholders in this Section 6.3;
(f) Each of the Shareholders agrees that the certificates to be issued in respect of the Acquisition common stock may bear a legend in a form satisfactory to counsel for Acquisition reflecting the status of the Acquisition common stock as restricted securities under Rule 144(a)(3) promulgated under the Securities Act and acknowledges that the transfer agent or registrar for Acquisition may be instructed to restrict the transfer of the Acquisition common stock in accordance with such legend and any other restrictions provided in this Agreement;
(g) Each of the Shareholders hereby agrees that he will not sell, transfer, hypothecate, pledge, assign or otherwise dispose of any of the Acquisition common stock, except pursuant to the terms of this Agreement and to a registration statement filed under the provisions of the Securities Act, a favorable no-action or interpretive letter received from the Commission or an opinion of counsel satisfactory to Acquisition that such sale, transfer, hypothecation, pledge, assignment or other disposition will not violate the registration requirements of the Securities Act, pursuant to an opinion of counsel satisfactory to Acquisition that such sale, transfer, hypothecation, pledge, assignment or other disposition will not violate the registration requirements of the Securities Act and does not in any way violate the terms of this Agreement; and
(h) Each of the Shareholders hereby acknowledges that: (i) the shares of Acquisition common stock referred to herein are being acquired after adequate investigation of the business plan and prospects of Acquisition; (ii) that none of the Shareholders is relying upon the accuracy of any predictions as to the future prospects or developments of Acquisition or its business and is well informed as to the business of Acquisition and has reviewed its operations and financial statements; (iii) each of the Shareholders or his professional advisors have discussed the financial condition and business operations of Acquisition with the officers, directors and principal stockholders of Acquisition and has been afforded the opportunity to ask questions with respect thereto; and (iv) each of the Shareholders specifically acknowledges that the shares of Acquisition common stock are speculative and involve a very high degree of risk and that there can be no assurance that Acquisition will achieve its business objectives or, in particular, that it will ever have cash available for distribution to its stockholders.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that Each GS Purchaser purchasing Initial Notes on the Purchaser is a reporting company in Canada Closing Date or Committed Notes on any Subsequent Closing Date, severally and the United States not jointly, represents and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject warrants to, and qualified in their entirety byagrees with, this Agreement.the Issuer as of the Closing Date or such Subsequent Closing Date, as applicable, that:
(i) It is either: (A) a Qualified Institutional Buyer, (B) an institutional accredited investor (as such term is defined in Rule 501(a)(1), (2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession), and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation or (7)) or (C) a non- U.S. Person (as such term is defined in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered Regulation S under the Securities Act.
(5) The Vendor represents that and will not acquire the Consideration Shares will be acquired solely Securities for the account or benefit of any U.S. Person;
(ii) It is acquiring the Vendorapplicable Securities for its own account, solely for investment purposes only and not with a view to resale any distribution thereof that would not otherwise comply with the Securities Act; and
(iii) It (A) understands that the applicable Securities have not been registered under the Securities Act and the Securities are being issued by the Issuer in transactions exempt from the registration requirements of the Securities Act and (B) agrees that all or distributionany part of the applicable Securities may not be offered or sold except pursuant to effective registration statements under the Securities Act or pursuant to applicable exemptions from registration under the Securities Act and in compliance with applicable state laws;
(iv) It understands that the exemption from registration afforded by Rule 144 (the provisions of which are known to such GS Purchaser) promulgated under the Securities Act depends on the satisfaction of various conditions, and that that, if applicable, Rule 144 may afford the basis for sales only in limited amounts;
(v) Except as disclosed, it did not employ any broker or finder in connection with the transactions contemplated in this Agreement and no other person has, fees or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge commissions are payable to such personGS Purchaser (it being understood and agreed that the Initial Closing Payment and the Committed Notes Closing Payment do not constitute a fees or commission);
(vi) Either (1) the source of funds to be used by such GS Purchaser to pay the purchase price of the applicable Securities does not include assets of any employee benefit plan (other than a plan exempt from the coverage of ERISA) or plan or any other entity the assets of which consist of “plan assets” of employee benefit plans or plans as defined in Department of Labor regulation Section 2510.3-101, as amended by Section 3(42) of ERISA (the “Plan Asset Regulation”) or anyone else, (2) its purchase and holding of the Consideration Shares, Securities or any interest thereintherein shall not result in a non-exempt prohibited transaction under ERISA or section 4975 of the Code. As used in this clause (vi), the term “employee benefit plan” shall have the meaning assigned to such term in Section 3(3) of ERISA, and the Vendor has no plans term “plan” shall have the meaning assigned thereto in Section 4975(e)(1) of the Code; and
(vii) It either (A) is, and for so long as it holds any Securities, will be, a “venture capital operating company” or wholly owned by a “venture capital operating company” or (B) does not have, and for so long as it holds any Securities, will not have, “significant equity participation” by benefit plan investors pursuant to enter into any such contract, undertaking, agreement or arrangementthe Plan Asset Regulation. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser term “venture capital operating company” shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor meaning assigned to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity such term in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration SharesPlan Asset Regulation.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) Seller recognizes that the Consideration ETHZilla Shares are have not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and been registered under the Securities Act., nor under the securities laws of any state and, therefore, cannot be resold unless the resale of the ETHZilla Shares is registered under the Securities Act or unless an exemption from registration is available, provided that ETHZilla has provided the Seller certain registration rights as described in Section 4.01 hereof;
(5b) The Vendor represents that Seller may not sell the Consideration ETHZilla Shares will be acquired solely without registering them under the Securities Act and any applicable state securities laws unless exemptions from such registration requirements are available with respect to any such sale;
(c) Seller is acquiring the ETHZilla Shares for the its own account of the Vendor, solely for long-term investment purposes and not with a view to resale toward resale, fractionalization or distributiondivision, or distribution thereof, and that no other person hasit does not presently have any reason to anticipate any change in its circumstances, financial or otherwise, or will acquire, any direct particular occasion or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement event which would necessitate or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from require the sale or distribution of any Consideration Shares by ETHZilla Shares. Seller agrees to set forth the Vendor terms of its ownership, record address and social security number/EIN on the Share Registration Form, a form of which is attached hereto as Exhibit B (the “Share Registration Form”);
(d) Seller acknowledges that it is an “accredited investor” as such term is defined in violation Rule 501 of any applicable lawRegulation D of the Securities Act;
(e) Seller is aware of, rule or regulationhas received and had an opportunity to review (A) (i) ETHZilla’s Annual Report on Form 10-K for the year ended December 31, 2024; and (ii) ETHZilla’s Quarterly Reports on Form 10-Q and current reports on Form 8-K from January 1, 2025, to the date of Seller’ entry into this Agreement (which filings can be accessed by going to ▇▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/search/search.htm, typing “ETHZilla Corp” in the “Name, ticker symbol, or CIK” field, and clicking the “Submit” button), in each of case (i) and (ii), including the audited and unaudited financial statements, description of business, risk factors, results of operations, certain transactions and related business disclosures described therein (collectively the “Disclosure Documents”) and an independent investigation made by it of ETHZilla; (B) has, a reasonable time prior to the date of this Agreement, been given an opportunity to review material contracts and documents of ETHZilla and has had an opportunity to ask questions of and receive answers from ETHZilla’s officers and directors and has no pending questions as of the date of this Agreement; and (C) is not relying on any misrepresentation by the Vendor oral representation of ETHZilla or any breach other person, nor any written representation or assurance from ETHZilla; in connection with Seller’s acceptance of any warranties herein the ETHZilla Shares and investment decision in connection therewith. Seller acknowledges that due to its receipt of and review of the information described above, he, she or any covenants or agreements set forth herein.it has received similar information as would be included in a Registration Statement filed under the Securities Act;
(8) The Vendor f) Seller has such knowledge and experience in financial and business matters such that Seller is capable of evaluating the merits and risks of an investment in ETHZilla Shares and of making an informed investment decision, and does not require a representative in evaluating the merits and risks of an investment in ETHZilla Shares;
(g) Seller acknowledges that he, she or it is a sophisticated investor capable of assessing and assuming investment risks with respect to securities, including the ETHZilla Shares, and further acknowledges that ETHZilla is entering into this Agreement with Seller in reliance on this acknowledgment and with Seller’s understanding, acknowledgment and agreement that ETHZilla is privy to material non-public information regarding ETHZilla (collectively, the “Non-Public Information”), which Non-Public Information may be material to a reasonable investor, such as Seller, when making investment disposition decisions, including the decision to enter into this Agreement, and Seller’s decision to enter into this Agreement is being made with full recognition and acknowledgment that ETHZilla is privy to the Non-Public Information, irrespective of whether such Non-Public Information has been provided to Seller. Seller hereby waives any claim, or potential claim, it has or may have against ETHZilla relating to ETHZilla’s possession of Non-Public Information. Seller has specifically requested that ETHZilla not provide it with any Non-Public Information. Seller understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity ETHZilla would not enter into this Agreement in the United Statesabsence of the representations and warranties set forth in this paragraph, and that these representations and warranties are a fundamental inducement to ETHZilla in entering into this Agreement;
(h) Seller has had an opportunity to ask questions of and receive satisfactory answers from ETHZilla, or any other jurisdictionperson or persons acting on behalf of ETHZilla, has made any finding or determination as concerning the terms and conditions of this Agreement and ETHZilla, and all such questions have been answered to the merits full satisfaction of Seller;
(i) Seller recognizes that an investment in ETHZilla is a speculative venture. The ownership of ETHZilla Shares as an investment involves special risks;
(j) Seller realizes that ETHZilla Shares cannot readily be sold until or unless they are registered under the Consideration SharesSecurities Act as contemplated by Section 4.01 hereof, nor as they will be restricted securities; and therefore the ETHZilla Shares must not be accepted unless Seller has liquid assets sufficient to assure that such purchase will cause no undue financial difficulties and Seller can provide for current needs and possible personal contingencies;
(k) Seller confirms and represents that it is able (i) to bear the economic risk of its investment, (ii) to hold ETHZilla Shares for an indefinite period of time, and (iii) to afford a complete loss of its investment;
(l) Seller has carefully considered and has, to the extent it believes such discussion necessary, discussed with its professional, legal, tax and financial advisors, the suitability of an investment in ETHZilla Shares for its particular tax and financial situation and its advisers, if such advisors were deemed necessary, have determined that ETHZilla Shares are a suitable investment for it;
(m) Seller has not become aware of and has not been offered ETHZilla Shares by any form of general solicitation or advertising, including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine, or other similar media or television or radio broadcast or any seminar or meeting where, to Seller’s knowledge, those individuals that have attended have been invited by any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation similar means of general solicitation or endorsement with respect to the Consideration Shares.advertising; and
(9n) The Vendor represents, warrants, Seller confirms and acknowledges that ETHZilla Shares will bear the following restrictive legend (aor a similar legend), until or unless registered under the Securities Act: ‘‘THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED WITHOUT EITHER: i) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulationREGISTRATION UNDER THE SECURITIES ACT OF 1933, radio or televisionAS AMENDED, and (bAND APPLICABLE STATE SECURITIES LAWS, OR ii) they did not attend any seminars or meetings regarding this transactionSUBMISSION TO THE CORPORATION OF AN OPINION OF COUNSEL, in which the attendees were invited by any general solicitation or general advertisingSATISFACTORY TO THE CORPORATION THAT SAID SHARES AND THE TRANSFER THEREOF ARE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS.’’
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges Buyer understands and agrees that the Purchaser is a reporting company in Canada consummation of this Agreement including the issuance of the Shares, as contemplated herein, constitutes the offer and the United States and therefore files information with the Ontario Securities Commission and with sale of securities under the Securities Act. Buyer agrees that such transactions shall be consummated in reliance on exemptions from the registration and Exchange Commission prospectus delivery requirements of such statutes which depend, among other items, on the circumstances under which such securities are acquired. In order to provide documentation for reliance upon exemptions from the registration and prospectus delivery requirements for such transactions Buyer agrees that it will sign appropriate representations and warranties related to its suitability to invest in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information Company, including an investment letter and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth suitability questionnaire which are contained in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges "suitability letter" attached hereto as exhibit "A." Buyer understands that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are have not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and been registered under the Securities Act.
(5) Act and must be held indefinitely without any transfer, sale, or other disposition unless such shares are subsequently registered under the Securities Act or registration is not required under the Securities Act in reliance on an available exemption. The Vendor represents that Shares to be acquired by the Consideration Shares Buyer under the terms of this Agreement will be acquired solely for the account of the VendorBuyer's own account, solely for investment purposes investment, and not with a view to the present intention of resale or distribution, and distribution of all or any part of the securities. Buyer agrees that no other person has, he will refrain from transferring or will acquire, otherwise disposing of any direct or indirect interest in of the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, in such manner as to violate the Securities Act or any applicable state securities law regulating the disposition thereof. Buyer is an "accredited investor" within the meaning of Regulation D promulgated under the Securities Act and the Vendor has adequate means for providing for his current needs and possible personal contingencies and has no plans need now and anticipates no need in the foreseeable future to enter into any such contract, undertaking, agreement or arrangementsell the Shares which Buyer is purchasing hereby. The Vendor Buyer understands that he may not dispose the Shares being sold pursuant to this Agreement are being offered and sold in reliance on specific exemptions from the registration requirements of the Consideration Shares, or any part thereof, or any interest therein, unless Federal and until legal counsel for Purchaser shall have provided its written opinion state securities laws and that the intended disposition does not violate Company is relying upon the law truth and accuracy of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferableBuyer's representations, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency andwarranties, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor inagreements, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements understandings set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in herein to determine Buyer's suitability to acquire the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Securities Representations. STC and Holder hereby represent and warrant to Company as follows:
(1) The Vendor acknowledges that the Purchaser STC and Holder are "Accredited Investors", as such term is a reporting company defined in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2Rule 501(a) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, amended (the "Securities Act"); (2) STC's and Holder's addresses as set forth on the ▇▇▇▇ of Sale are STC's and Holder's true and correct residences and STC and Holder have no present intention of becoming a resident of any other state or jurisdiction; (b3) Purchaser has the Restricted Shares are being acquired solely for STC's and Holder's own account, for investment, and are not furnished being purchased with a view to or for the Vendor with all information resale, distribution, subdivision, or fractionalization thereof and STC and Holder have no present plans to enter into any contract, undertaking, agreement, or arrangement relating thereto; (4) STC and Holder understand that would none of the Restricted Shares have been or will be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents , that STC and Holder have no rights to require that the Consideration Restricted Shares will be acquired solely registered under the Securities Act or any state securities or blue sky laws; that STC and Holder may have to hold the Restricted Shares for the account a substantial period of the Vendor, solely for investment purposes and not with a view to resale or distribution, time and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he it may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor STC and Holder to liquidate STC's and Holder's investment in Company; and that in any event the Consideration Restricted Shares readily may not be assigned, transferred, pledged, or otherwise sold or offered for sale except pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from registration under the Securities Act, the availability of which must be established by STC and Holder to the satisfaction of Company; and in case of an emergency and, replacement or exchange therefore, must are to bear a restrictive legend to this effect; (5) STC and Holder are acquiring the financial risk Restricted Shares without being furnished any offering literature or prospectus, but STC and Holder have been granted, and are relying upon, STC's and Holder's personal discussions, investigations and due diligence of owning the Consideration Shares investment for an indefinite period.
Company and its officers; (6) The Vendor is knowledgeable STC and experienced Holder have such knowledge and experience in making business and financial matters that STC and Holder are capable of evaluating investments. The investments the business and financial matters of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, Company and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
risks and merits relating thereto; (7) The Vendor will indemnify that there has never been any representation, guarantee, or warranty made to STC and hold PurchaserHolder by any broker, Company, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with agents or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United Statesemployees, or any other jurisdictionperson, has made any finding expressly or determination by implication, as to any gain or profit to be derived from, or the merits approximate or exact length of time that STC and Holder may be required to remain an owner of, the Consideration Restricted Shares, nor have or as to any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Sharesmatter not expressly contained herein.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Sources: Acquisition Agreement (Online Vacation Center Holdings Corp)
Securities Representations. (1) The Vendor acknowledges If the Committee determines that the Purchaser is a reporting company in Canada law so requires, the holder of the Option granted hereunder shall, upon any exercise or conversion thereof, execute and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered deliver to the Vendor an opportunity Company a written statement, in a form satisfactory to discuss this transaction with the Purchaser and/or representatives of the Purchaser Company, representing and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.warranting that:
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) holder has been advised that holder may be an "affiliate" within the Consideration Shares are not being registered meaning of Rule 144 under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 19331933 (the "Act") and in this connection the Company is relying in part on holder's representations set forth in this Section;
(b) holder understands that Shares received on any exercise of the Option must be held indefinitely unless an exemption from any applicable resale restrictions is available or the Company files an additional registration statement (or a "re-offer prospectus") with regard to such Shares and the Company is under no obligation to register such Shares (or to file a "reoffer prospectus"), except as amendedotherwise permitted herein;
(c) holder understands that the exemption from registration under Rule 144 will not be available unless (i) a public trading market then exists for Shares of the Company, (ii) adequate information concerning the Company is then available to the public, and (iii) other terms and conditions of Rule 144, or any exemption therefrom, are complied with and that any sale of Shares acquired pursuant to the Option may be made only in limited amounts in accordance with such terms and conditions;
(d) Shares acquired pursuant to the Option are being acquired for holder's own account and not with a view to, or for sale in connection with, the distribution thereof, nor with any present intention of distributing or selling any such Shares;
(e) in the event that holder is permitted to sell, transfer, pledge, hypothecate, assign or otherwise dispose of Shares acquired pursuant to the Option, holder may only do so pursuant to a registration statement under the Act and qualification under applicable state securities laws or pursuant to an opinion of counsel satisfactory to the Company that such registration is not required, and that the transaction (if it involves a sale in the over-the-counter market or on a securities exchange) complies with the provisions of Rule 144 under the Act. A stop-transfer order will be placed on the books of the Company respecting the certificates evidencing Shares acquired pursuant to the Option, and such certificates shall bear any required legends until such time as the Shares evidenced by such certificates shall have been registered under the Act or shall have been transferred in accordance with an opinion of counsel for the Company that such registration is not required;
(f) holder has been advised that holder may be subject to the reporting requirements of Section 16(a) of the Securities Exchange Act of 1934 (the "Securities Act") and (b) Purchaser has not furnished that holder may be subject to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ restrictions and reporting requirements on the Vendor with all information that would be included in purchase and sale of securities of the applicable registration statement if the Consideration Shares were offered and registered Company imposed under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
(10) The Vendor is an "Accredited Investor" as such term is defined in Rule 501(a) under the Securities Act as set forth at Schedule 2.8 hereto.
(11) The Vendor understands and acknowledges that the Consideration Shares are "restricted securities," as defined by the Securities Act, and agree to resell the Securities only (a) pursuant to a registration statement under the Securities Act, or (b) pursuant to a written opinion of legal counsel for Purchaser stating that such resale is exempt from registration.
Appears in 1 contract
Securities Representations. Each Member confirms and acknowledges to Pubco that:
(1i) The Vendor acknowledges that Such Member will be acquiring the Purchaser is Shares and any shares of common stock issuable upon conversion thereof (collectively, the “Securities”) for its own account, for investment purposes only and not with a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject view to, and qualified or for sale in their entirety byconnection with, this Agreement.
(2a distribution, as that term is used in Section 2(11) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, amended (the "“Securities Act") and (b) Purchaser has not furnished ”), in a manner which would require registration under the Vendor with all information that would be included Securities Act or any state securities laws. Each Member can bear the economic risk of investment in the applicable registration statement if Securities, has knowledge and experience in financial business matters, is capable of managing the Consideration Shares were offered risk of investment in the Securities, and is an “accredited investor” as defined in Regulation D under the Securities Act. Each Member recognizes that the Securities have not been registered under the Securities Act.
(5) The Vendor represents that , nor under the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law securities laws of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferablestate, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear cannot be resold unless the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments resale of the Vendor inSecurities is registered under the Securities Act or unless an exemption from registration is available. Each Member has carefully considered and has, to the extent it believes such discussion necessary, discussed with its professional, legal, tax, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and financial advisors the Vendor has the ability to bear the financial risk suitability of an investment in Purchaser.the Securities for its particular tax and financial situation and its respective advisers if such advisors were deemed necessary, have determined that the Securities are a suitable investment for it. Each Member has not been offered the Securities by any form of general solicitation or advertising, including, but not limited to, advertisements, articles, notices, or other communications published in any newspaper, magazine, or other similar media or television or radio broadcast or any seminar or meeting where, to such Member’s knowledge, those individuals that have attended have been invited by any such or similar means of general solicitation or advertising. Each Member has had an opportunity to ask questions of and receive satisfactory answers from Pubco, or persons acting on behalf of Pubco, concerning the terms and conditions of the Securities and Pubco, and all such questions have been answered to the full satisfaction of such Member. Neither Pubco nor any other party has supplied any Member any information regarding the Securities or an investment in the Securities other than as contained in this Agreement, and each Member is relying on its own investigation and evaluation of Pubco and the Securities and not on any other information;
(7ii) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense Each Member (including attorney's fees and expensesA) and claims arising out is aware of, in connection with or resulting has received and had an opportunity to review (i) from Pubco’s Annual Report on Form 10-K for the sale or distribution of any Consideration Shares by year ended December 31, 2023; (ii) Pubco’s Quarterly Report on Form 10-Q for the Vendor in violation of any applicable lawquarter ended March 31, rule or regulation2024, and (iii) Pubco’s current reports on Form 8-K from January 1, 2024, to the date of such Member’s entry into this Agreement (which filings can be accessed by going to h▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/searchedgar/companysearch.html, typing “Reliant Holdings” in the “Company name” field, and clicking the “Search” button), in each case (i) through (ii), including the audited and unaudited financial statements, description of business, risk factors, results of operations, certain transactions and related business disclosures described therein (collectively the “Disclosure Documents”) any misrepresentation and an independent investigation made by the Vendor or any breach it of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and Pubco. Each Member acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as due to the merits its receipt of and review of the Consideration Sharesinformation described above, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to it has received similar information as would be included in a Registration Statement filed under the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.Securities Act and
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) Seller recognizes that the Consideration ETHZilla Shares are have not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and been registered under the Securities Act., nor under the securities laws of any state and, therefore, cannot be resold unless the resale of the ETHZilla Shares is registered under the Securities Act or unless an exemption from registration is available, provided that ETHZilla has provided the Seller certain registration rights as described in Section 4.01 hereof;
(5b) The Vendor represents that Seller may not sell the Consideration ETHZilla Shares will be acquired solely without registering them under the Securities Act and any applicable state securities laws unless exemptions from such registration requirements are available with respect to any such sale;
(c) Seller is acquiring the ETHZilla Shares for the its own account of the Vendor, solely for long-term investment purposes and not with a view to resale toward resale, fractionalization or distributiondivision, or distribution thereof, and that no other person hasit does not presently have any reason to anticipate any change in its circumstances, financial or otherwise, or will acquire, any direct particular occasion or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement event which would necessitate or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from require the sale or distribution of any Consideration Shares by ETHZilla Shares. Seller agrees to set forth the Vendor terms of its ownership, record address and social security number/EIN on the Share Registration Form, a form of which is attached hereto as Exhibit B (the “Share Registration Form”);
(d) Seller acknowledges that it is an “accredited investor” as such term is defined in violation Rule 501 of any applicable lawRegulation D of the Securities Act;
(e) Seller is aware of, rule or regulationhas received and had an opportunity to review (A) (i) ETHZilla’s Annual Report on Form 10-K for the year ended December 31, 2024; and (ii) ETHZilla’s Quarterly Reports on Form 10-Q and current reports on Form 8-K from January 1, 2025, to the date of Seller’ entry into this Agreement (which filings can be accessed by going to ▇▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/search/search.htm, typing “ETHZilla Corp” in the “Name, ticker symbol, or CIK” field, and clicking the “Submit” button), in each of case (i) and (ii), including the audited and unaudited financial statements, description of business, risk factors, results of operations, certain transactions and related business disclosures described therein (collectively the “Disclosure Documents”) and an independent investigation made by it of ETHZilla; (B) has, a reasonable time prior to the date of this Agreement, been given an opportunity to review material contracts and documents of ETHZilla and has had an opportunity to ask questions of and receive answers from ETHZilla’s officers and directors and has no pending questions as of the date of this Agreement; and (C) is not relying on any misrepresentation by the Vendor oral representation of ETHZilla or any breach other person, nor any written representation or assurance from ETHZilla; in connection with Seller’s acceptance of any warranties herein the ETHZilla Shares and investment decision in connection therewith. Seller acknowledges that due to its receipt of and review of the information described above, he, she or any covenants or agreements set forth herein.it has received similar information as would be included in a Registration Statement filed under the Securities Act;
(8) The Vendor f) Seller has such knowledge and experience in financial and business matters such that Seller is capable of evaluating the merits and risks of an investment in ETHZilla Shares and of making an informed investment decision, and does not require a representative in evaluating the merits and risks of an investment in ETHZilla Shares;
(g) Seller acknowledges that he, she or it is a sophisticated investor capable of assessing and assuming investment risks with respect to securities, including the ETHZilla Shares, and further acknowledges that ETHZilla is entering into this Agreement with Seller in reliance on this acknowledgment and with Seller’s understanding, acknowledgment and agreement that ETHZilla is privy to material non-public information regarding ETHZilla (collectively, the “Non-Public Information”), which Non-Public Information may be material to a reasonable investor, such as Seller, when making investment disposition decisions, including the decision to enter into this Agreement, and Seller’s decision to enter into this Agreement is being made with full recognition and acknowledgment that ETHZilla is privy to the Non-Public Information, irrespective of whether such Non-Public Information has been provided to Seller. Seller hereby waives any claim, or potential claim, it has or may have against ETHZilla relating to ETHZilla’s possession of Non-Public Information. Seller has specifically requested that ETHZilla not provide it with any Non-Public Information, and ETHZilla has not provided Seller with any Non-Public Information in connection with this Agreement. Seller understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity ETHZilla would not enter into this Agreement in the United Statesabsence of the representations and warranties set forth in this paragraph, and that these representations and warranties are a fundamental inducement to ETHZilla in entering into this Agreement;
(h) Seller has had an opportunity to ask questions of and receive satisfactory answers from ETHZilla, or any other jurisdictionperson or persons acting on behalf of ETHZilla, has made any finding or determination as concerning the terms and conditions of this Agreement and ETHZilla, and all such questions have been answered to the merits full satisfaction of Seller; and
(i) Seller recognizes that an investment in ETHZilla is a speculative venture. The ownership of ETHZilla Shares as an investment involves special risks;
(j) Seller realizes that ETHZilla Shares cannot readily be sold until or unless they are registered under the Consideration SharesSecurities Act as contemplated by Section 4.01 hereof, nor as they will be restricted securities; and therefore the ETHZilla Shares must not be accepted unless Seller has liquid assets sufficient to assure that such purchase will cause no undue financial difficulties and Seller can provide for current needs and possible personal contingencies;
(k) Seller confirms and represents that it is able (i) to bear the economic risk of its investment, (ii) to hold ETHZilla Shares for an indefinite period of time, and (iii) to afford a complete loss of its investment;
(l) Seller has carefully considered and has, to the extent it believes such discussion necessary, discussed with its professional, legal, tax and financial advisors, the suitability of an investment in ETHZilla Shares for its particular tax and financial situation and its advisers, if such advisors were deemed necessary, have determined that ETHZilla Shares are a suitable investment for it;
(m) Seller has not become aware of and has not been offered ETHZilla Shares by any form of general solicitation or advertising, including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine, or other similar media or television or radio broadcast or any seminar or meeting where, to Seller’s knowledge, those individuals that have attended have been invited by any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation similar means of general solicitation or endorsement with respect to the Consideration Shares.advertising;
(9n) The Vendor represents, warrants, Seller confirms and acknowledges that ETHZilla Shares will bear the following restrictive legend (aor a similar legend), until or unless registered under the Securities Act: ‘‘THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED WITHOUT EITHER: i) REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS, OR ii) SUBMISSION TO THE CORPORATION OF AN OPINION OF COUNSEL, SATISFACTORY TO THE CORPORATION THAT SAID SHARES AND THE TRANSFER THEREOF ARE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS.’’
(o) Seller understands that the Consideration Lock-Up Shares were not offered or distributed to shall contain the Vendor through an advertisement in printed media of general and regular paid circulationfollowing legend (the “Contract Legend”): “THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN SECTION 6.1 OF THE SERIES B-3 PREFERRED STOCK PURCHASE AGREEMENT, radio or televisionDATED AS OF DECEMBER 9, and (b) they did not attend any seminars or meetings regarding this transaction2025, in which the attendees were invited by any general solicitation or general advertisingAS MAY BE AMENDED FROM TIME TO TIME, BY AND AMONG ZIPPY, INC. AND ETHZILLA CORPORATION, AND THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH.”
Appears in 1 contract
Securities Representations. (1a) The Vendor Each Seller is acquiring the Second Lien Notes and Convertible Preferred Stock (the “Buyer Securities”) for such Seller’s own account and not with a view to, or for offer of resale in connection with, a distribution thereof, within the meaning of the Securities Act. In acquiring the Buyer Securities, such Seller is not offering or selling, and will not offer or sell, for itself in connection with any distribution of the Buyer Securities, and such Seller does not have a participation in and will not participate in any such undertaking or in any underwriting of such an undertaking except in compliance with applicable federal and state securities laws.
(b) Each Seller is an “accredited investor” as such term is defined under Regulation D promulgated under the Securities Act. Each Seller acknowledges that the Purchaser Seller can bear the economic risk of the Seller’s investment in the Buyer Securities, and has such knowledge and experience in financial and business matters similar to the transaction described herein such that the Seller is a reporting company capable of evaluating the merits and risks of an investment in Canada and the United States and therefore files information with the Ontario Buyer Securities.
(c) Each Seller understands that such Buyer Securities Commission and with have not been registered pursuant to the Securities Act or any applicable state securities laws, that the Buyer Securities, when issued, will be characterized as “restricted securities” under federal securities laws, and Exchange Commission in that under such laws and applicable regulations the United States ("Public Information")Buyer Securities cannot be sold or otherwise disposed of without registration under the Securities Act or an exemption therefrom. The Vendor Each Seller represents that it has reviewed the Public Information and such Seller is fully familiar with Purchaser's current business and future prospects. All statementsRule 144 promulgated under the Securities Act, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warrantiesas currently in effect, and assumptions understands the resale limitations imposed thereby and by the Securities Act and that, should any certificate be issued representing any of the Buyer Securities, each such certificate shall conspicuously set forth on the face or back thereof, in addition to any legends required by Law or other agreement, a legend to the effect set forth in the Public Information are subject to, and qualified in their entirety by, this AgreementSection 6.24.
(2d) The Vendor Each Seller represents and acknowledges that Buyer is issuing the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold Buyer Securities pursuant to an exemption from the registration set forth in requirements of the Securities Act of 1933, as amended, (based on the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Actrepresentations provided by Sellers hereunder.
(5e) The Vendor represents that Each Seller has received or has had full access to all the Consideration Shares will be acquired solely for the account of the Vendor, solely for information it considers necessary or appropriate to make an informed investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement decision with respect to the Consideration SharesBuyer Securities to be acquired by such Purchaser under this Agreement. Such Seller further has had an opportunity to ask questions and receive answers from the Parent regarding the terms and conditions of the issuance of the Buyer Securities and to obtain additional information (to the extent the Parent possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to such Seller or to which such Seller had access. The foregoing, however, does not in any way limit or modify the representations and warranties made by the Buyer Parties in Article V of this Agreement. Sellers acknowledge that, except as specifically provided in this Agreement, the Parent and Buyer make no representations or warranties, express or implied, as to the condition (financial or otherwise), assets, liabilities, operations, business or prospects of Buyer or the Parent.”
(9e) The Vendor representsArticle V of the Purchase Agreement is revised and amended to include the following new sections 5.8, warrants, 5.9 and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in 5.10 which the attendees were invited by any general solicitation or general advertising.read as follows:
Appears in 1 contract
Sources: Asset Purchase Agreement (Superior Well Services, INC)
Securities Representations. The Seller Shares are being issued to the Seller and this Agreement is being made by Holdings in reliance upon the following express representations and warranties of the Seller. The Seller acknowledges, represents and warrants that:
(1a) The Vendor acknowledges Seller is acquiring the Seller Shares for investment for its own account, not as a nominee or agent, and not with a view to the sale or distribution of any part thereof, and the Seller has no present intention of selling, granting participation in, or otherwise distributing the same. The Seller does not have any contract, undertaking, agreement, or arrangement with any Person to sell, transfer or grant participations to such Person, or to any third party, with respect to any of the Seller Shares to be acquired by the Seller.
(b) The Seller understands that the Purchaser is a reporting company Seller Shares have not been registered under the Securities Act on the grounds that the sale provided for in Canada this Agreement and the United States and therefore files information with the Ontario Securities Commission and with issuance of securities hereunder is exempt from registration under the Securities Act, and Exchange Commission that the Seller’s reliance on such exemption is predicated in part on the representations set forth herein.
(c) The Seller understands that the exemption from registration under Rule 144 will not be available under current law unless (i) a public trading market then exists for the Common Stock of Holdings, (ii) adequate information concerning Holdings is then available to the public, and (iii) other terms and conditions of Rule 144 or any exemption therefrom are complied with and that any sale of the Seller Shares may be made only in limited amounts in accordance with such terms and conditions.
(d) The Seller has (i) been provided with and has had a reasonable opportunity to review copies of the reports and other information set forth on Appendix 1; and (ii) been afforded (A) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, Representatives of Holdings concerning the terms and conditions of the issuance of the Seller Shares pursuant to the terms of this Agreement and the merits and risks of investing in the United States Seller Shares; ("Public Information"B) access to information about Holdings and Holdings’ financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (C) the opportunity to obtain such additional information that Holdings possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to such investment.
(e) Since November 1, 2007 the Seller has not, directly or indirectly, nor has any Person acting at the direction of the Seller, engaged in any transactions in the securities of Holdings (including, without limitation, any “short sales” as defined in Rule 3b-3 of the Securities Exchange Act of 1934, as amended, or any direct or indirect stock pledges, forward sale contracts, options, puts, calls, short sales, swaps and similar arrangements (including on a total return basis). , or any sales or other transactions through non-US broker dealers or foreign regulated brokers having the effect of hedging securities of Holdings).
(f) [The Vendor Seller represents that it is an “accredited investor,” as defined under Regulation D of the Securities Act, has reviewed such knowledge and experience in financial and business matters as to be capable of evaluating the Public Information merits and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in risks of its purchase of the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possessionSeller Shares, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared ability to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.purchase.]5
Appears in 1 contract
Sources: Restricted Stock Agreement (Marketaxess Holdings Inc)
Securities Representations. The Shares are being distributed to the Participants and this Agreement is being made in reliance upon the following express representations and warranties of the Participants. The Participants acknowledge, represent and warrant that: (1a) The Vendor acknowledges the Participants have been advised that the Purchaser is a reporting company in Canada Participants may be an “affiliate” within the meaning of Rule 144 under the Securities Act and the United States and therefore files information with Company is relying in part on the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions Participants’ representations set forth in this Section 9; (b) if the Public Information Participants are subject todeemed an affiliate within the meaning of Rule 144 under the Securities Act, the Shares must be held indefinitely by the Participants unless an exemption from the registration requirements of the Securities Act is available for the resale of such Shares or the Company files an additional registration statement (or a “re-offer prospectus”) with regard to the resale of such Shares and the Company is under no obligation to register the resale of the Shares (or to file a “re-offer prospectus”); (c) if the Participants are deemed an affiliate within the meaning of Rule 144 under the Securities Act, the Participants understand that the exemption from registration under Rule 144 will not be available under current law unless (i) a public trading market then exists for the Shares, (ii) adequate information concerning the Company is then available to the public, and qualified (iii) other terms and conditions of Rule 144 or any exemption therefrom are complied with and that any sale of the Shares may be made only in their entirety bylimited amounts in accordance with such terms and conditions; and (d) the Participants are either, this Agreement.
as indicated by each of the Participants on Exhibit A, (2i) The Vendor acknowledges that an “accredited investor” as such term is defined in Rule 501(a) of Regulation D promulgated under the Purchaser has made available Securities Act, as amended from time to it all requested documents and records in its possessiontime or (ii) not an accredited investor, and has offered to (or, in the Vendor an opportunity to discuss this transaction with case of a trust, the Purchaser and/or representatives trustee has), by itself or through a “purchaser representative” within the meaning of Rule 501(i) under Regulation D of the Purchaser Securities Act, such knowledge and obtain any additional information necessary experience in financial and business matters so as to verify be capable of evaluating the accuracy merits and risks of any information furnished. The Vendor acknowledges that no information furnished by his, her or its investment in the Purchaser constitutes investmentShares, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares Participants are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear capable of bearing the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction such investment and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability able to bear the financial risk complete loss of an his, her or its investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising..
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information In connection with the Ontario Securities Commission issuance and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, acquisition of Acquired Shares under this Agreement, GM hereby represents and warrants to the Company as follows:
(a) GM is an "accredited investor" within the meaning of SEC Rule 501 of Regulation D, as presently in effect.
(2b) The Vendor acknowledges that GM is acquiring and will hold the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Acquired Shares for investment for its account only and not with a view to, or for resale in connection with, any "distribution" thereof within the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree meaning of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5c) The Vendor represents GM understands that the Consideration Acquired Shares will be acquired solely for have not been registered under the account Securities Act by reason of the Vendor, solely for investment purposes and not with a view to resale or distribution, specific exemption therefrom and that the Acquired Shares must be held indefinitely, unless they are subsequently registered under the Securities Act or GM obtains an opinion of counsel, in form and substance satisfactory to the Company and its counsel, that such registration is not required. GM further acknowledges and understands that the Company is under no other person hasobligation to register the Acquired Shares, except as the parties hereto may expressly agree in that certain Registration Rights Agreement of even date herewith attached hereto as Exhibit "B" or otherwise. -----------
(d) GM will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to not sell, transfer or pledge to such personotherwise dispose of the Acquired Shares in violation of the Securities Act, the Exchange Act, or anyone elsethe rules promulgated thereunder, including Rule 144 under the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangementSecurities Act. The Vendor understands GM agrees that he may it will not dispose of the Consideration Shares, or any part thereof, or any interest therein, Acquired Shares unless and until legal counsel for Purchaser shall have it has complied with all requirements of this Agreement applicable to the disposition of Acquired Shares and it has provided its the Company with written opinion assurances, in substance and form satisfactory to the Company, that (1) the intended proposed disposition does not violate require registration of the law Acquired Shares under the Securities Act or all appropriate action necessary for compliance with the registration requirements of the Securities Act or with any exemption from registration available under the Securities Act (including Rule 144) has been taken and (2) the proposed disposition will not result in the contravention of any jurisdiction. The Vendor acknowledges that transfer restrictions applicable to the Consideration Acquired Shares are non-transferable, that it will not be possible for under the Vendor to liquidate securities laws of any state or the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite periodrules promulgated thereunder.
(6e) The Vendor is knowledgeable Company, a wholly-owned subsidiary of IMPCO, formerly conducted its business as an operating segment of IMPCO known as the Automotive OEM Division. GM acknowledges and experienced agrees that IMPCO's existing periodic filings pursuant to the Exchange Act historically discussed the Company as a separate segment of IMPCO and provided certain information about the business activities that are now being conducted by the Company. GM acknowledges that it has been furnished with, and has had access to, such information as it considers necessary or appropriate for deciding whether to invest in making the Acquired Shares, and evaluating investments. The investments GM has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits issuance of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Acquired Shares.
(9f) The Vendor represents, warrants, GM is aware that its investment in the Company is a speculative investment that has limited liquidity and acknowledges that (a) the Consideration Shares were not offered or distributed is subject to the Vendor through risk of complete loss. GM is able, without impairing its financial condition, to hold the Acquired Shares for an advertisement indefinite period and to suffer a complete loss of its investment in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertisingAcquired Shares.
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Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) Seller is domiciled in and each Shareholder is a resident of the Consideration Shares are not being registered under the laws Commonwealth of any jurisdiction Pennsylvania, and are being sold pursuant to Seller and each Shareholder is an exemption from registration set forth "accredited investor" as that term is in the Securities Act Rule 501 of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered Regulation D under the Securities Act.
(5b) The Vendor represents Seller and each Shareholder has read the Securities Reports. Buyer has made available to Seller and each Shareholder all documents that Seller or any Shareholder has requested relating to the Consideration Buyer, the Shares will be acquired solely for and the account Warrants, and any Common Stock issuable upon exercise of the Vendor, solely for investment purposes and not with a view to resale or distributionWarrants (collectively the "Securities"), and that no other person has, or will acquire, any direct or indirect interest in has provided answers to Seller and all of the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, Shareholders' questions concerning the Consideration Shares, or any interest therein, Buyer and the Vendor Securities. In addition, Seller and each Shareholder has no plans had an opportunity to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of discuss the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, Buyer and the Vendor has Securities with representatives of Buyer and to ask questions of them. Without limiting the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify foregoing, Seller and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor each Shareholder understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, neither Buyer nor anyone acting on its behalf has made any finding representations or determination as to warranties other than those contained herein respecting Buyer or the merits future conduct of Buyer's business or of Seller's business, and neither Seller nor any Shareholder has relied upon any representations or warranties other than those contained herein in the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities belief that they were made any recommendation or endorsement with respect to the Consideration Shareson behalf of Buyer.
(9c) Seller and each Shareholder recognizes that receipt of the Shares involves certain risks, including without limitation those set forth in the Registration Statement on the Form S-3 that is one of the Securities Reports and has sufficient knowledge to understand all such risks.
(d) Seller and each Shareholder is acquiring the Securities to be issued to it without a view to any distribution or resale thereof, other than a resale that, in the opinion of Seller's counsel, which opinion is satisfactory to Buyer, may be made without violating the registration provisions of the Securities Act or applicable Pennsylvania securities laws. The Vendor represents, warrants, Securities are "restricted securities" within the meaning of Rule 144 under the Securities Act and acknowledges have not been registered under the Securities Act and therefore must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from registration is available.
(e) Seller and each Shareholder understands that (a) there shall be endorsed on the Consideration Shares were not offered certificate evidencing each share of Common Stock issued pursuant to this Agreement or distributed the Warrant delivered contemporaneously herewith a legend substantially similar to the Vendor through an advertisement in printed media of general and regular paid circulationfollowing: "THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, radio or televisionAS AMENDED (THE '1933 ACT'), and (b) they did not attend any seminars or meetings regarding this transactionOR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND ARE 'RESTRICTED SECURITIES' AS DEFINED BY RULE 144 UNDER THE 1933 ACT. THE SHARES MAY NOT BE SOLD, in which the attendees were invited by any general solicitation or general advertisingTRANSFERRED, PLEDGED OR DISTRIBUTED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT REGISTERING THE SHARES UNDER THE 1933 ACT, OR IN LIEU THEREOF, AN OPINION OF COUNSEL, WHICH OPINION IS SATISFACTORY TO THE ISSUER OF THE SHARES, TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACTS."
Appears in 1 contract
Securities Representations. Upon the exercise of the Option prior to the registration pursuant to the Securities Act of the Common Stock subject to the Option, the Executive will be deemed to acknowledge and make the following representations and warranties and any issuances of Common Stock by the Company shall be made in reliance upon the following express representations and warranties of the Executive:
(1a) The Vendor acknowledges shares of the Common Stock are being acquired for the Executive's own account and not with a view to, or for sale in connection with, the distribution thereof, nor with any present intention of distributing or selling any of such shares of Common Stock;
(b) the Executive is aware that there are substantial risks in subscribing to purchase, and in purchasing, the shares of Common Stock;
(c) representatives of the Company have answered any questions the Executive has asked about the Company and the Executive has received any additional information that he has requested;
(d) the Executive has been advised that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with shares of Common Stock have not been registered under the Securities Act on the ground that no distribution or public offering of the shares of Common Stock is to be effected (it being understood, however, that the shares of Common Stock are being issued and Exchange Commission sold in reliance on the United States ("Public Information"exemption provided under Rule 701 under the Securities Act). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions in this connection the Company is relying in part on the Executive's representations set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.Section;
(2e) The Vendor acknowledges that in deciding to subscribe for the Purchaser has made available to it all requested documents and records in its possessionshares of Common Stock, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor Executive has relied solely upon its own an independent investigation in making a decision of the Company's business and upon consultation, to sell the Purchased Shares for extent deemed necessary by the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree Executive, with his legal and financial advisers with respect to that business and the nature of risk with no assurance the investment and the Executive has not acted upon the basis of any income from other representations or warranties;
(f) the Executive has such investments knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the purchase of the shares of Common Stock contemplated by this Agreement, and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there Executive is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared able to bear the substantial economic risks of owning the Consideration Shares for an indefinite period.that investment and can afford a complete loss of that investment;
(4) The Vendor acknowledges that (ag) the Consideration Shares Executive is an "accredited investor" (as defined in Regulation D promulgated under the Act);
(h) in the event that the Executive is permitted to Transfer or otherwise dispose of the shares of Common Stock, the Executive may only do so pursuant to a registration statement under the Securities Act and qualification under applicable state securities laws or pursuant to an opinion of counsel satisfactory to the Company that such registration and qualification are not being required, and that the transaction (if it involves a sale in the over-the-counter market or on a securities exchange) does not violate the provisions of Rule 144 under the Securities Act. A stop-transfer order will be placed on the books of the Company respecting the certificates evidencing the shares of Common Stock, and such certificates shall bear any required legends, until such time as the shares of Common Stock evidenced by such certificates shall have been registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act or shall have been Transferred in accordance with an opinion of 1933, as amended, counsel for the Company that such registration is not required;
(i) the "Securities Act") and (b) Purchaser has Transfer of the shares of Common Stock have not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and been registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has shares of Common Stock must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available and the Company is under no plans obligation to enter into any such contract, undertaking, agreement or arrangement. The Vendor register the shares of Common Stock;
(j) the Executive understands that he may not dispose the shares of Common Stock acquired upon exercise of the Consideration SharesOption are restricted securities within the meaning of Rule 144 promulgated under the Securities Act; that the exemption from registration under Rule 144 will not be available unless (i) a public trading market then exists for the common stock of the Company, (ii) adequate information concerning the Company is then available to the public, and (iii) other terms and conditions of Rule 144 or any part thereofexemption therefrom are complied with; and that any sale of the shares of Common Stock may be made only in limited amounts in accordance with such terms and conditions;
(k) the Executive understands that there is no market, and there cannot be any assurance that there will ever be a market, for the purchase and sale of the shares of Common Stock, and the shares of Common Stock will not be readily acceptable as collateral for loans;
(l) the Executive is not a nonresident alien for the purpose of income taxation; and
(m) the Executive is not relying upon any representation or any interest therein, unless warranty regarding the Company or the business of the Company in making the decision to purchase the shares of Common Stock and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor hereby acknowledges that the Consideration Shares are non-transferableCompany has disclaimed such representation or warranty whether arising by contract, law or otherwise and agrees that it will not such disclaimer shall be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite periodeffective.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered Seller is an “accredited investor” as defined in Rule 501(a) under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, amended (the "“Securities Act") ”, and each member of Seller is an accredited investor.
(b) Purchaser Seller understands that the Shares, the Warrant and the Exercise Shares are “restricted securities” and that the sale of the Shares and the Warrant to Seller has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and been registered under the Securities Act.
(5c) The Vendor represents that Seller is acquiring the Consideration Shares will be acquired solely and the Warrant for its own account for investment only, has no present intention of distributing the account Shares or the Warrant and has no arrangement or understanding with any other person regarding the distribution of the Vendor, solely for investment purposes Shares or the Warrant (this representation and warranty not limiting Seller’s right to sell the Shares pursuant to an effective registration statement under the Act or the Shares or the Warrant otherwise in accordance with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in an exemption from registration under the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite periodSecurities Act).
(6d) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of Seller recognizes that the Vendor inShares, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, the Warrant and the Vendor has Exercise Shares cannot be resold unless they are subsequently registered under the ability to bear the financial risk of Act or an investment in Purchaserexemption from such registration is available.
(7e) The Vendor will indemnify Seller understands and hold Purchaser, its affiliates, and representatives, harmless from and against any agrees that the Warrant and all losscertificates evidencing the Shares to be issued to Seller and that the Exercise Shares will bear the following legend: THESE SECURITIES HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, liabilityAS AMENDED (THE “ACT”) OR APPLICABLE STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, costOFFERED FOR SALE, damagePLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR LAWS OR, expense (including attorney's fees and expenses) and claims arising out ofIF REASONABLY REQUESTED BY THE COMPANY, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth hereinAN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Pacific Ethanol, Inc.)
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) Each Seller and the Consideration Shares Stockholder are "accredited investors" within the meaning of the Securities Act. Each of the Sellers and the Stockholder has knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of the investment in the Common Stock issued to the Sellers in the name of the Stockholder by the Parent pursuant to this Agreement and is financially able to undertake the risks involved in such an investment. Each of the Sellers and the Stockholder further understands that (i) the shares of Common Stock issued pursuant to this Agreement have not being been registered under the laws Securities Act, or any state securities law by reason of any jurisdiction and are being sold their issuance in a transaction exempt from the registration requirements of the Securities Act pursuant to Section 4(2) and Regulation D promulgated thereunder and an exemption under the applicable state securities law and (ii) such shares must be held indefinitely unless a registration statement covering the resale of such shares is effective under the Securities Act and such state law or unless an exemption from registration set forth under the Securities Act and such state law is available.
(b) Each Seller and the Stockholder agree that Shares shall not be sold or transferred unless either (i) they first shall have been registered under the Securities Act of 1933, as amended (the "Act"), or (ii) the Parent first shall have been furnished with an opinion of legal counsel, reasonably satisfactory to the Parent and which may be counsel to the Parent, to the effect that such sale or transfer is exempt from the registration requirements of the Act. Each certificate representing Shares shall bear a legend substantially in the following form: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, and may not be offered, sold or otherwise transferred, pledged or hypothecated without the consent of SatCon Technology Corporation and unless and until such securities are registered under such Act or an opinion of counsel satisfactory to SatCon Technology Corporation is obtained to the effect that such registration is not required."
(c) The Parent has granted the "Securities Act") Sellers and (b) Purchaser has not furnished the Vendor with Stockholder and their attorneys or other representatives access to all information that would be included in about the applicable registration statement if Parent which the Consideration Shares were offered Sellers and registered under the Securities ActStockholder have requested; and the Sellers, the Stockholders and their attorneys or other representatives have had the opportunity to ask questions of, and receive answers from, representatives of the Parent concerning such information and the Parent's financial condition and prospects.
(5d) The Vendor represents that the Consideration Shares will be acquired solely for the account principal office of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, Sellers and the Vendor has no plans place at which the decision by the Sellers and the Stockholder to enter into any such contract, undertaking, agreement or arrangementparticipate in this Agreement and the transactions contemplated hereby was made is located at the address appearing next to the Seller's and the Stockholders' names in Section 14 hereof.
3. The Vendor understands that he may not dispose Representations of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, Buyer and the Vendor has Parent ------------------------------------------- The Buyer and the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify Parent jointly and hold Purchaser, its affiliates, severally represents and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as warrants to the merits of Sellers and the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.Stockholders as follows:
Appears in 1 contract
Securities Representations. (1a) The Vendor acknowledges that the Purchaser Seller is a reporting company an “accredited investor” as defined in Canada and the United States and therefore files information with the Ontario Securities Commission and with Rule 501(a) under the Securities and Exchange Commission in Act. Seller has not been organized, reorganized or recapitalized specifically for the United States ("Public Information"). The Vendor represents that it has reviewed purpose of acquiring the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this AgreementShares.
(2b) The Vendor acknowledges that Seller is acquiring the Purchaser has made available to it all requested documents and records in Shares for its possessionown account for investment only, and has offered to the Vendor an opportunity to discuss this transaction not with the Purchaser and/or representatives a view to, or for sale in connection with, any distribution of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks violation of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933Act, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered or any rule or regulation under the Securities Act.
(5c) The Vendor represents that Seller has had adequate opportunity to obtain from representatives of the Consideration Shares will be acquired solely Buyer such information about the Buyer as is necessary for the account undersigned to evaluate the merits and risks of its acquisition of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9d) The Vendor representsSeller has sufficient expertise in business and financial matters to be able to evaluate the risks involved in the acquisition of the Shares and to make an informed investment decision with respect to such acquisition.
(e) The Seller understands that the Shares have not been registered under the Securities Act and are “restricted securities” within the meaning of Rule 144 under the Securities Act; and the Shares cannot be sold, warrantstransferred or otherwise disposed of unless they are subsequently registered under the Securities Act or an exemption from registration is then available.
(f) A legend substantially in the following form will be placed on the certificate(s) representing the Shares: “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.” The Seller understands the Shares are subject to a statutory holding period of four months and acknowledges that (a) one day under Canadian securities laws and certificates representing the Consideration Shares were not offered or distributed to shall bear a legend substantially in the Vendor through an advertisement in printed media of general and regular paid circulationfollowing form: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, radio or televisionTHE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [INSERT DATE THAT IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE]” “THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK EXCHANGE; HOWEVER, and (b) they did not attend any seminars or meetings regarding this transactionTHE SAID SECURITIES CANNOT BE TRADED THROUGH THE FACILITIES OF SUCH EXCHANGE SINCE THEY ARE NOT FREELY TRANSFERABLE, in which the attendees were invited by any general solicitation or general advertisingAND CONSEQUENTLY ANY CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON THE TORONTO STOCK EXCHANGE.”
Appears in 1 contract
Sources: Asset Purchase Agreement (World Energy Solutions, Inc.)
Securities Representations. (1) The Vendor acknowledges If the Committee or Board determines that the Purchaser is a reporting company in Canada law so requires, the holder of the Restricted Stock granted hereunder and the United States holder of the Option granted hereunder shall, upon any exercise or conversion thereof, execute and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered deliver to the Vendor an opportunity Company a written statement, in a form satisfactory to discuss this transaction with the Purchaser and/or representatives of the Purchaser Company, representing and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.warranting that:
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered holder has been advised that holder may be an "affiliate" within the meaning of Rule 144 under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 19331933 (the "Act") and in this connection the Company is relying in part on the holder's representations set forth in this Section;
(b) the holder understands that the Restricted Stock and Shares received on any exercise of the Option must be held indefinitely unless an exemption from any applicable resale restrictions is available or the Company files an additional registration statement (or a "re-offer prospectus") with regard to such Shares and the Company is under no obligation to register such Shares (or to file a "re-offer prospectus"), except as amendedotherwise permitted herein;
(c) the holder understands that the exemption from registration under Rule 144 will not be available unless (i) a public trading market then exists for the Shares, (ii) adequate information concerning the Company is then available to the public, and (iii) other terms and conditions of Rule 144, or any exemption therefrom are complied with and that any sale of the Restricted Stock or Shares acquired pursuant to the Option may be made only in limited amounts in accordance with such terms and conditions;
(d) Shares acquired pursuant to the Option and/or the Restricted Stock are for the holder's own account and not acquired or obtained with a view to, or for sale in connection with, the distribution thereof, nor with any present intention of distributing or selling any such Shares;
(e) in the event that the holder is permitted to sell, transfer, pledge, hypothecate, assign or otherwise dispose of the Shares acquired pursuant to the Option or the Restricted Stock, the holder may only do so pursuant to a registration statement under the Act and qualification under applicable state securities laws or pursuant to an opinion of counsel satisfactory to the Company that such registration is not required, and that the transaction (if it involves a sale in the over-the-counter market or on a securities exchange) complies with the provisions of Rule 144 under the Act. A stop-transfer order will be placed on the books of the Company with respect to the certificates evidencing the Shares acquired pursuant to the Option or the Restricted Stock, and such certificates shall bear any required legends until such time as the Shares evidenced by such certificates shall have been registered under the Act or shall have been transferred in accordance with an opinion of counsel satisfactory to the Company that such registration is not required;
(f) the holder has been advised that holder may be subject to the reporting requirements of Section 16(a) of the Securities Exchange Act of 1934 (the "Securities Act") and (b) Purchaser has not furnished that the Vendor with all information that would holder may be included in subject to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ restrictions and reporting requirements on the applicable registration statement if purchase and sale of securities of the Consideration Shares were offered and registered Company imposed under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Sources: Stock Option and Restricted Stock Agreement (Priceline Com Inc)
Securities Representations. (1) The Vendor acknowledges AvStar believes that the Purchaser it is a reporting company in Canada and the United States and therefore files information familiar with the Ontario Securities Commission business and with financial condition, properties, operations and prospects of Pangea, has been given full access to all material information concerning the Securities condition, properties, operations and Exchange Commission in the United States ("Public Information"). The Vendor represents that prospects of Pangea, and it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor had an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser ask such questions of, and to receive such information from, Pangea as it has desired and to obtain any additional information necessary to verify the accuracy of any the information furnished. The Vendor acknowledges and data received; it has such knowledge, skill and experience in business, financial and investment matters so that no information furnished by it is capable of evaluating the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself merits and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning an acquisition of the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges shares of the Pangea Series A Preferred Stock being acquired pursuant hereto; it has reviewed its financial condition and commitments and that, based on such review, it is satisfied that it (a) the Consideration Shares are not being registered under the laws has adequate means of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933providing for contingencies, as amended, (the "Securities Act") and (b) Purchaser has not furnished no present or contemplated future need to dispose of all or any of shares of the Vendor with all information Pangea Series A Preferred Stock being acquired pursuant hereto to satisfy existing or contemplated undertakings, needs or indebtedness, (c) is capable of bearing the economic risk of the ownership of shares of the Pangea Series A Preferred Stock being acquired pursuant hereto for the indefinite future, and (d) has assets or sources of income which, taken together, are more than sufficient so that would be included in it could bear the applicable registration statement if loss of the Consideration Shares were offered and registered under entire value of shares of the Securities Act.
(5) The Vendor represents that Pangea Series A Preferred Stock being acquired pursuant hereto; it is acquiring shares of the Consideration Shares will be Pangea Series A Preferred Stock being acquired pursuant hereto solely for the account of the Vendorits own beneficial account, solely for investment purposes purposes, and not with a view to resale or distribution, and that no other person hasto, or will acquirefor resale in connection with, any direct or indirect interest in distribution of shares of the Consideration Shares. The Vendor Pangea Series A Preferred Stock being acquired pursuant hereto; it understands that shares of the Pangea Series A Preferred Stock being acquired pursuant hereto has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, not been registered under the Consideration Shares, Securities Act of 1933 or any interest therein, state securities laws and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose therefore shares of the Consideration Shares, or any part thereof, or any interest therein, unless Pangea Series A Preferred Stock being acquired pursuant hereto is "restricted" under such laws; and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to sold any portion of shares of the Vendor through an advertisement in printed media Pangea Series A Preferred Stock being acquired pursuant hereto and has no present intention of general and regular paid circulation, radio reselling or television, and (b) they did not attend otherwise disposing of any seminars portion of shares of the Pangea Series A Preferred Stock being acquired pursuant hereto either currently or meetings regarding this transaction, in which after the attendees were invited by passage of a fixed or determinable period of time or upon the occurrence or non-occurrence of any general solicitation predetermined event or general advertisingcircumstance.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) Each Shareholder is a resident of the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration state set forth in opposite such Shareholder's name on Schedule 5.23, and Michael L. Moore, Frances Penfold and Dale A. Spencer are "▇▇▇▇▇▇▇▇▇▇ ▇▇▇es▇▇▇▇" ▇▇ ▇▇▇▇ ▇erm i▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇f Regulation D under the Securities Act of 1933, as amended, amended (the "Securities 1933 Act") and ).
(b) Purchaser Each Shareholder has not furnished read the Vendor Securities Reports. Axiom has made available to each Shareholder all documents that the Shareholders have requested relating to the Axiom Shares, and has provided answers to all of Shareholders' questions concerning the Axiom Shares. In addition, Shareholders have had an opportunity to discuss the Axiom Shares with all information representatives of Axiom and to ask questions of them. Without limiting the foregoing, each Shareholder understands and acknowledges that would be included neither Axiom, Acquisition nor anyone acting on the behalf of either has made any representations or warranties other than those contained herein respecting Axiom or the future conduct of Axiom's business or of IDT's business, and no Shareholder has relied upon any representations or warranties other than those contained herein in the belief that they were made on behalf of Axiom.
(c) Each Shareholder recognizes that receipt of Axiom Shares involves certain risks, including without limitation those set forth in the Registration Statement on Form S-1 that is one of the Securities Reports, and has sufficient knowledge to understand all such risks.
(d) Each Shareholder is acquiring the Axiom Shares to be issued to such Shareholder without a view to any distribution or resale thereof, other than a distribution or resale that, in the opinion of counsel, which opinion is satisfactory to Axiom, may be made without violating the registration provisions of the 1933 Act or applicable registration statement if securities laws of the Consideration jurisdiction in which such Shareholder resides. The Axiom Shares were offered to be acquired by the Shareholders are "restricted securities" within the meaning of Rule 144 under the 1933 Act and have not been registered under the Securities Act1933 Act and therefore must be held indefinitely unless they are subsequently registered under the 1933 Act or an exemption from registration is available.
(5e) The Vendor represents Each Shareholder understands that there shall be endorsed on the Consideration certificate evidencing the Axiom Shares will be acquired solely delivered contemporaneously herewith a legend substantially similar to the following: "THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE 1933 ACT'), OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND ARE RESTRICTED SECURITIES' AS DEFINED BY RULE 144 UNDER THE 1933 ACT. THE SHARES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR DISTRIBUTED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT REGISTERING THE SHARES UNDER THE 1933 ACT, OR IN LIEU THEREOF, AN OPINION OF COUNSEL, WHICH OPINION IS SATISFACTORY TO THE ISSUER OF THE SHARES, TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACTS."
(f) Each Shareholder acknowledges that (i) such Shareholder is at least 21 years of age, (ii) such Shareholder has adequate means of providing for the account of the Vendorhis current needs and personal contingencies, solely (iii) such Shareholder has no need for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest liquidity in the Consideration Shares. The Vendor has no contractAxiom Shares acquired in connection herewith, undertaking, agreement (iv) such Shareholder maintains his domicile and is not a transient or arrangement with any person temporary resident at the address shown below and (v) all of such Shareholder's investments in and commitments to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid assets and similar investments (including an investment in Purchaser) are are, and after such Shareholder's receipt of the Axiom Shares, will be, reasonable in relation to their respective such Shareholder's net worths, worth and the Vendor has the ability to bear the financial risk of an investment in Purchasercurrent needs.
(7g) The Vendor will indemnify Each Shareholder understands that the Axiom Shares are being issued in reliance on specific exemptions from the registration requirements of Federal and hold Purchaserstate securities laws and that Axiom and the principals and controlling persons thereof are relying upon the truth and accuracy of the representations, its affiliateswarranties, agreements, acknowledgments, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements understandings set forth herein.
(8) The Vendor understands herein in order to determine the applicability of such exemptions and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as suitability of such Shareholder to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration acquire Axiom Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Sources: Merger Agreement (Axiom Inc)
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered BHI is an "accredited investor" as that term is defined in Rule 501 of Regulation D promulgated under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, amended (the "Securities Act") and (b) Purchaser has ). BHI is not furnished the Vendor with all information a "U.S. person" as that would be included in the applicable registration statement if the Consideration Shares were offered and registered term is defined under Rule 902 of Regulation S promulgated under the Securities Act.. This Agreement has been executed by BHI outside the "United States" (as defined in Rule 902(1) of Regulation S). BHI is acquiring the Shares in an "offshore transaction" (as defined in Rule 902(h) of Regulation S). The Shares were not offered to BHI in the United States and at the time of execution of this Agreement and the time of any offer to BHI to purchase the Shares hereunder, BHI was physically outside of the United States
(5b) The Vendor represents that BHI is not acquiring the Consideration Shares will be acquired solely for the account or benefit of the Vendor, solely any U.S. person. The Shares are being acquired by BHI for investment purposes only, for BHI's own account and not with a the view to any resale or distributiondistribution thereof, and that no other person hasBHI is not participating, directly or indirectly, in an underwriting of such Shares, and will not take, or will acquirecause to be taken, any direct or indirect interest action that would cause BHI to be deemed an "underwriter" of such Shares as defined in Section 2(11) of the Consideration SharesSecurities Act. The Vendor BHI acknowledges that BHI has no contractbeen offered an opportunity to ask questions of, undertakingand received answers from, agreement or arrangement Parent concerning Parent and its proposed investments, and that, to BHI's knowledge, Parent has fully complied with any person request for such information. BHI has such knowledge and experience in financial and business matters as to sell, transfer or pledge to such person, or anyone else, be capable of evaluating the Consideration Shares, or any interest therein, merits and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk risks of an investment in Purchaserthe Shares, is able to bear such risks, and has obtained, in BHI's judgment, sufficient information from Parent to evaluate the merits and risks of an investment in the Shares. BHI has evaluated the risks of investing in Parent and has determined that the Shares are a suitable investment for BHI.
(7c) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement BHI is not relying on Parent with respect to the Consideration Shares.tax and other economic considerations involved in this transaction. BHI acknowledges that BHI has been advised by Parent to consult with its tax or financial consultants prior to entering into this Agreement. SCHEDULE B REPRESENTATIONS AND WARRANTIES OF CLEARWIRE
(9) The Vendor representsSECTION 1. ORGANIZATION; GOOD STANDING; QUALIFICATION. Clearwire is a company duly organized, warrantsvalidly existing, and acknowledges that (a) in good standing under the Consideration Shares were not offered or distributed to laws of the Vendor through an advertisement in printed media of general and regular paid circulationLuxembourg. Parent is a company duly organized, radio or televisionvalidly existing, and (b) they did not attend in good standing under the laws of the State of Delaware. Each of Clearwire and Parent has all requisite corporate power and authority to execute and deliver, and carry out the provisions of, this Agreement and any seminars or meetings regarding this transaction, in Ancillary Agreement to which the attendees were invited by any general solicitation or general advertisingit is a party.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges If the Committee determines that the Purchaser is a reporting company in Canada law so requires, the holder of the Option granted hereunder shall, upon any exercise or conversion thereof, execute and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered deliver to the Vendor an opportunity Company a written statement, in a form satisfactory to discuss this transaction with the Purchaser and/or representatives of the Purchaser Company, representing and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.warranting that:
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) in the Consideration event that the holder of Shares are not being registered under the laws of any jurisdiction and are being sold received pursuant to an exemption from exercise of the Option is permitted to sell, transfer, pledge, hypothecate, assign or otherwise dispose of such Shares, the holder may only do so pursuant to a registration set forth in statement under the Securities Act of 19331933 (the "Act") and qualification under applicable state securities laws or pursuant to an opinion of counsel satisfactory to the Company that such registration and qualification are not required, and that the transaction (if it involves a sale in the over-the-counter market or on a securities exchange) does not violate the provisions of Rule 144 under the Act. A stop-transfer order will be placed on the books of the Company respecting the certificates evidencing the Shares, and such certificates shall bear any required legends until such time as amendedthe Shares evidenced by such certificates shall have been registered under the Act or shall have been transferred in accordance with an opinion of counsel for the Company that such registration is not required; and
(b) holder understands that the resale of the Shares are subject to Rule 144 promulgated under the Act; that the exemption from registration under Rule 144 will not be available unless (i) a public trading market then exists for the Common Stock of the Company, (ii) adequate information concerning the Company is then available to the public, and (iii) other terms and conditions of Rule 144 or any exemption therefrom are complied with; and that any sale of the Shares may be made only in limited amounts in accordance with such terms and conditions; and
(c) holder has been advised that holder may be subject to the reporting requirements of Section 16(a) of the Securities Exchange Act of 1934 (the "Securities Act") and (b) Purchaser has not furnished that holder may be subject to insi▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇trictions and reporting requirements on the Vendor with all information that would be included in purchase and sale of securities of the applicable registration statement if the Consideration Shares were offered and registered Company imposed under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges Seller understands and agrees that the Purchaser is a reporting company in Canada consummation of this Agreement including the issuance of shares of Kibush Stock as contemplated hereby, constitutes the offer and the United States and therefore files information with the Ontario Securities Commission and with sale of securities under the Securities Act. Seller agrees that such transactions shall be consummated in reliance on exemptions from the registration and Exchange Commission prospectus delivery requirements of such statutes which depend, among other items, on the circumstances under which such securities are acquired. In order to provide documentation for reliance upon exemptions from the registration and prospectus delivery requirements for such transactions, Seller agrees that it will sign appropriate representations and warranties related to its suitability to invest in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information Buyer, including an investment letter and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth suitability questionnaire which are contained in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges “suitability letter” attached hereto as Exhibit “A.” Seller understands that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives shares of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are Kibush Stock have not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and been registered under the Securities Act.
(5) Act and must be held indefinitely without any transfer, sale, or other disposition unless such shares are subsequently registered under the Securities Act or registration is not required under the Securities Act in reliance on an available exemption. The Vendor represents that shares of Kibush Stock to be acquired by the Consideration Shares Seller under the terms of this Agreement will be acquired solely for the account of the VendorSeller’s own account, solely for investment purposes investment, and not with a view to the present intention of resale or distribution, and distribution of all or any part of the securities. Seller agrees that no other person has, it will refrain from transferring or will acquire, otherwise disposing of any direct or indirect interest in of the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Sharesshares, or any interest therein, in such manner as to violate the Securities Act or any applicable state securities law regulating the disposition thereof. Seller is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act and the Vendor has adequate means for providing for its current needs and possible personal contingencies and has no plans need now and anticipates no need in the foreseeable future to enter into any such contract, undertaking, agreement or arrangementsell the shares of Kibush Stock which Seller is purchasing hereby. The Vendor Seller understands that he may not dispose the shares of Kibush Stock being sold pursuant to this Agreement are being offered and sold in reliance on specific exemptions from the Consideration Shares, or any part thereof, or any interest therein, unless registration requirements of Federal and until legal counsel for Purchaser shall have provided its written opinion state securities laws and that the intended disposition does not violate Buyer is relying upon the law truth and accuracy of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferableSeller’s representations, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency andwarranties, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor inagreements, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements understandings set forth hereinherein to determine Seller’s suitability to acquire the shares of Kibush Stock.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Sources: Securities Purchase Agreement (Kibush Capital Corp)
Securities Representations. (1A) The Vendor acknowledges Sellers understand that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario RWB Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act, any other U.S. securities laws or applicable state securities laws, and are being issued pursuant to exemptions from such laws, and that RWB’s reliance upon such exemptions is predicated in part on the Sellers’ representations contained herein. Sellers acknowledge that RWB is relying in part upon Sellers’ representations and warranties contained herein for the purpose of qualifying the issuance of the Securities for applicable exemptions from registration or qualification pursuant to federal, state and provincial securities laws, rules and regulations.
(5B) The Vendor represents Sellers realize that the Consideration Shares RWB Securities have not been registered under the Securities Act or any other U.S. securities law, are characterized under the Securities Act as “restricted securities” and, therefore, cannot be sold or transferred unless subsequently registered under the Securities Act or an exemption from such registration is available. Each Seller acknowledges and agrees that all Securities issued under any Transaction Document will be acquired solely subject to a restrictive legend substantially similar to the following: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [INSERT DATE THAT IS 4 MONTHS AND 1 DAY AFTER DATE OF ISSUANCE]. THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR UNDER ANY STATE SECURITIES LAWS, AND THE SECURITIES REPRESENTED HEREBY MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE ISSUER THEREOF, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY (1) RULE 133 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN EACH CASE, IN COMPLIANCE WITH APPLICABLE U.S. SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, PROVIDED THAT, IN THE CASE OF (C)(1) AND (D) ABOVE, AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY IS PROVIDED TO THE EFFECT THAT SUCH TRANSFER DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS.”
(C) Sellers are acquiring the RWB Securities for the account of the Vendor, solely their own accounts for investment purposes only and not with a view to or for sale in connection with any distribution or resale or distributionthereof, and that no other person has, or will acquire, does not presently have any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person Person to sellsell or transfer such Securities.
(D) Each Seller is an “accredited investor” within the meaning of Rule 501(a) of Regulation D promulgated under the U.S. securities laws. Sellers, transfer either alone or pledge to such personwith the assistance of professional advisors, or anyone elseare sophisticated investors, can fend for themselves in the Consideration Shares, or any interest thereintransactions contemplated by this Agreement, and have such knowledge and experience in financial and business matters that Sellers can evaluate the Vendor merits and risks of the prospective investment in the Securities.
(E) Except for the representations specifically set forth in this Agreement by Buyer Parties, Sellers acknowledge that no officer or other representative of Buyer or RWB, nor any other person or entity has no plans made any representations of any kind or nature to induce Sellers to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, this Agreement or any other jurisdiction, has made any finding or determination as to Transaction Document and that Sellers are relying solely on the merits representations in this Agreement and the publicly available information regarding RWB that Sellers have determined was useful in acquiring the RWB Securities. Each Seller’s residence is in the State of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration SharesCalifornia.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Sources: Securities Purchase Agreement
Securities Representations. (1) The Vendor Such Contributing Stockholder hereby acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.following:
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration (i) The Company Shares are have not being been registered under the Securities Act, nor qualified under the securities laws of any jurisdiction other jurisdiction, (ii) the Company Shares cannot be resold unless they subsequently are registered under the Securities Act and qualified under applicable state securities laws, unless the Company determines that exemptions from such registration and qualification requirements are being available, and (iii) such Contributing Stockholder has no right to require such registration or qualification except as provided in the Registration Rights Agreement (or the agreement which it amends);
(b) The Company Shares to be acquired by the Contributing Stockholders pursuant to this Agreement will be acquired for such Contributing Stockholder’s own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act, or any applicable state securities laws, and the Company Shares will not be disposed of in contravention of the Securities Act or any applicable state securities laws;
(c) Each Contributing Stockholder is an “accredited investor” as defined in Rule 501(a) under the Securities Act. Each Contributing Stockholder has substantial knowledge and experience in financial and business matters, has specific experience making investment decisions of a similar nature, and is capable, without the use of a financial advisor, of utilizing and analyzing the information made available in connection with the acquisition of the Company Shares and of evaluating the merits and risks of an investment in the Company Shares;
(d) Each Contributing Stockholder has carefully reviewed and understands the risks of, and other considerations relating to, an investment in the Company Shares;
(e) Each Contributing Stockholder understands that its investment in the Company Shares is subject to significant economic risk, including the relative illiquidity resulting from the fact that the Company Shares (i) have not been registered under the Securities Act and, therefore, cannot be sold unless they are subsequently registered under the Securities Act or they are sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired solely for the account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulationregistration, and (ii) any misrepresentation by are subject to additional restrictions as provided herein. Such Contributing Stockholder is able to bear such economic risk of the Vendor or any breach investment in the Company Shares for an indefinite period of any warranties herein or any covenants or agreements set forth herein.time;
(8) The Vendor understands f) Each Contributing Stockholder has had an opportunity to ask questions and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in receive answers concerning the United States, or any other jurisdiction, has made any finding or determination as to the merits terms and conditions of the Consideration Shares, nor have any offering of the Company Shares and has had full access to such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to information concerning the Consideration Shares.Company as it has requested; and
(9g) The Vendor representsNo Contributing Stockholder has received or is relying upon any written offering literature or prospectus other than this Agreement. Further, warrants, and acknowledges that (a) no Contributing Stockholder has received or is relying upon any oral representations which are in any manner inconsistent with the Consideration Shares were not offered or distributed to the Vendor through an advertisement written information contained in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertisingAgreement.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada Each Noteholder severally and the United States not jointly represents and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject warrants to, and qualified in their entirety byagrees with, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives each of the Purchaser Issuers and obtain each Guarantor as of the Closing Date and as of each date it acquires any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished Notes (whether by the Purchaser constitutes investment, accounting, legal assignment or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.otherwise) that:
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amendedIt is either (A) a Qualified Institutional Buyer, (the "Securities Act"B) and an Institutional Accredited Investor or (bC) Purchaser has not furnished the Vendor with all information that would be included a non-U.S. Person (as such term is defined in the applicable registration statement if the Consideration Shares were offered and registered Regulation S under the Securities Act.
(5) The Vendor represents that and will not acquire the Consideration Shares will be acquired solely Notes for the account or benefit of any U.S. Person;
(b) It is acquiring the VendorNotes for its own account, solely for investment purposes only and not with a view to resale or distribution, any distribution thereof that would not otherwise comply with the Securities Act and that no other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.Applicable Law;
(6c) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting It (i) understands that the Notes have not been registered under the Securities Act and the Notes are being issued by the Issuers in transactions exempt from the sale or distribution registration requirements of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, Securities Act and (ii) any misrepresentation by the Vendor agrees that all or any breach part of the Notes may not be offered or sold except pursuant to effective registration statements under the Securities Act or pursuant to applicable exemptions from registration under the Securities Act and in compliance with applicable state laws;
(d) It understands that the exemption from registration afforded by Rule 144 (the provisions of which are known to such Noteholder) promulgated under the Securities Act depends on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts;
(e) Except as disclosed, it did not employ any warranties herein broker or any covenants finder in connection with the transactions contemplated in this Agreement and no fees or agreements set forth hereincommissions are payable to the Noteholders; it being understood that the Closing Payments do not constitute fees or commissions; and
(f) It has been furnished with or has had access to the information it has requested from the Note Parties and has sufficient knowledge and experience in financial and business matters and is capable of evaluating the merits and risks of investing in, and is able and prepared to bear the economic risk of having invested in, the Notes.
(8) The Vendor g) Each Noteholder understands that the Issuers will rely upon the accuracy and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits truth of the Consideration Shares, nor have any foregoing representations and warranties and each Noteholder hereby consents to such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Sharesreliance.
(9h) The Vendor represents, warrants, and Each Noteholder acknowledges that Notes shall bear a legend substantially in the following form: THE FOLLOWING INFORMATION IS PROVIDED PURSUANT TO TREASURY REGULATION SECTION 1.1275-3. THIS NOTE WAS ISSUED WITH ‘ORIGINAL ISSUE DISCOUNT’ WITHIN THE MEANING OF SECTION 1272, ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. UPON WRITTEN REQUEST, THE ISSUERS WILL PROVIDE TO ANY NOTEHOLDER OF THE NOTE (a1) THE ISSUE PRICE AND ISSUE DATE OF THE NOTE, (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTE, AND (3) THE ORIGINAL YIELD TO MATURITY OF THE NOTE. SUCH REQUEST SHOULD BE SENT TO THE ISSUER REPRESENTATIVE AT THE FOLLOWING ADDRESS (OR AT SUCH OTHER ADDRESS AS MAY BE SPECIFIED IN WRITING FROM TIME TO TIME BY THE ISSUERS): EMERGE ENERGY SERVICES OPERATING LLC, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
(i) Each Noteholder acknowledges that Notes shall bear a legend substantially in the Consideration Shares were not offered or distributed to following form: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. BY ITS ACCEPTANCE HEREOF, THE NOTEHOLDER OF THIS NOTE (I) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN “INSTITUTIONAL” ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT) (AN “ACCREDITED INVESTOR”), AND (2) AGREES THAT IT WILL NOT WITHIN ONE YEAR AFTER THE LATER OF THE DATE OF THE ORIGINAL ISSUANCE OF THIS NOTE AND THE DATE ON WHICH ANY ISSUER OR ANY OF ITS RESPECTIVE AFFILIATES OWNED THIS NOTE, OFFER, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT, SUBJECT TO THE RESTRICTIONS IN THE NOTE PURCHASE AGREEMENT, (A) (I) TO ANY ISSUER OR ANY SUBSIDIARY THEREOF, (II) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (III) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT IS ACQUIRING THE NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $1,000,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR THE OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, AND THAT PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE AGENT A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE AGENT FOR THIS NOTE), (IV) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT (IF AVAILABLE), (V) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (VI) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER REPRESENTATIVE SO REQUESTS), OR (VII) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. BY ITS ACCEPTANCE HEREOF, THE NOTEHOLDER OF THIS NOTE FURTHER AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE PURSUANT TO SUBCLAUSES (III) TO (VI) OF CLAUSE (A)(I) ABOVE, THE NOTEHOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE AGENT AND THE ISSUER REPRESENTATIVE SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
(j) Each Noteholder acknowledges that the Vendor through an advertisement Notes shall bear any legend set forth in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited applicable Intercreditor Agreement until no longer required by any general solicitation or general advertisingsuch document.
Appears in 1 contract
Sources: Second Lien Note Purchase Agreement (Emerge Energy Services LP)
Securities Representations. The TMSF Stockholder hereby acknowledges the following:
(1i) The Vendor acknowledges that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are Corporation shares have not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being been registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amendedamended (including the rules and regulations promulgated thereunder) (the “Securities Act”), nor qualified under the securities laws of any other jurisdiction, (ii) the "Securities Act") and (b) Purchaser has Corporation shares cannot furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and resold unless they subsequently are registered under the Securities Act.Act and qualified under applicable state securities laws, unless the Corporation determines that exemptions from such registration and qualification requirements are available, and (iii) such TMSF Stockholder has no right to require such registration or qualification;
(5ii) The Vendor represents that Corporation shares to be acquired by the Consideration Shares TMSF Stockholders pursuant to this Agreement will be acquired solely for the such TMSF Stockholder’s own account of the Vendor, solely for investment purposes and not with a view to resale or distribution, and that no other person hasto, or will acquireintention of, any direct or indirect interest distribution thereof in violation of the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration SharesSecurities Act, or any interest thereinapplicable state securities laws, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it Corporation shares will not be possible for disposed of in contravention of the Vendor to liquidate Securities Act or any applicable state securities laws;
(iii) The TMSF Stockholder is an “accredited investor” as defined in Rule 501(a) under the Consideration Shares readily Securities Act. Each TMSF Stockholder has substantial knowledge and experience in case financial and business matters, has specific experience making investment decisions of a similar nature, and is capable, without the use of a financial advisor, of utilizing and analyzing the information made available in connection with the acquisition of the Corporation shares and of evaluating the merits and risks of an emergency investment in the Corporation shares;
(iv) The TMSF Stockholder has carefully reviewed and understands the risks of, and other considerations relating to, an investment in the Corporation shares;
(v) The TMSF Stockholder understands that its investment in the Corporation shares is subject to significant economic risk, including the relative illiquidity resulting from the fact that the Corporation shares (i) have not been registered under the Securities Act and, therefore, must bear cannot be sold unless they are subsequently registered under the financial risk of owning the Consideration Shares investment for Securities Act or they are sold pursuant to an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless exemption from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulationsuch registration, and (ii) any misrepresentation by are subject to additional restrictions as provided herein. Such TMSF Stockholder is able to bear such economic risk of the Vendor or any breach investment in the Corporation shares for an indefinite period of any warranties herein or any covenants or agreements set forth herein.time;
(8) vi) The Vendor understands TMSF Stockholder has had an opportunity to ask questions and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in receive answers concerning the United States, or any other jurisdiction, has made any finding or determination as to the merits terms and conditions of the Consideration Shares, nor have any offering of the Corporation shares and has had full access to such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to information concerning the Consideration Shares.Corporation as it has requested; and
(9vii) The Vendor representsTMSF Stockholder has not received nor is he or she relying upon any written offering literature or prospectus other than this Agreement. Further, warrants, and acknowledges that (a) the Consideration Shares were TMSF Stockholder has not offered received nor is he or distributed to she relying upon any oral representations which are in any manner inconsistent with the Vendor through an advertisement written information contained in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertisingAgreement.
Appears in 1 contract
Securities Representations. (1A) The Vendor acknowledges Sellers understand that the Purchaser is a reporting company in Canada and the United States and therefore files information with the Ontario RWB Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and registered under the Securities Act, any other U.S. securities laws or applicable state securities laws, and are being issued pursuant to exemptions from such laws, and that RWB’s reliance upon such exemptions is predicated in part on the Sellers’ representations contained herein. Sellers acknowledge that RWB is relying in part upon Sellers’ representations and warranties contained herein for the purpose of qualifying the issuance of the Securities for applicable exemptions from registration or qualification pursuant to federal, state and provincial securities laws, rules and regulations.
(5B) The Vendor represents Sellers realize that the Consideration Shares RWB Securities have not been registered under the Securities Act or any other U.S. securities law, are characterized under the Securities Act as “restricted securities” and, therefore, cannot be sold or transferred unless subsequently registered under the Securities Act or an exemption from such registration is available. Each Seller acknowledges and agrees that all Securities issued under any Transaction Document will be acquired solely subject to a restrictive legend substantially similar to the following: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [INSERT DATE THAT IS 4 MONTHS AND 1 DAY AFTER DATE OF ISSUANCE]. THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR UNDER ANY STATE SECURITIES LAWS, AND THE SECURITIES REPRESENTED HEREBY MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE ISSUER THEREOF, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY (1) RULE 133 THEREUNDER, IF AVAILABLE, OR (2) RULE 144A THEREUNDER, IF AVAILABLE, AND, IN EACH CASE, IN COMPLIANCE WITH APPLICABLE U.S. SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, PROVIDED THAT, IN THE CASE OF (C)(1) AND (D) ABOVE, AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY IS PROVIDED TO THE EFFECT THAT SUCH TRANSFER DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS.” (C) Sellers are acquiring the RWB Securities for the account of the Vendor, solely their own accounts for investment purposes only and not with a view to or for sale in connection with any distribution or resale or distributionthereof, and that no other person has, or will acquire, does not presently have any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person Person to sell, sell or transfer or pledge to such person, or anyone else, the Consideration Shares, or any interest therein, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangement. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency and, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite periodSecurities.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract
Sources: Securities Purchase Agreement (Red White & Bloom Brands Inc.)
Securities Representations. (1) The Vendor acknowledges that the Purchaser is a reporting company in Canada BUYER Shares are received by SELLER for investment purposes for SELLER’s own account, and the United States and therefore files information not with the Ontario Securities Commission and with the Securities and Exchange Commission in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth in the Public Information are subject view to, and qualified or for resale in their entirety byconnection with, this Agreement.
(2) The Vendor acknowledges any distribution thereof. SELLER understands that the Purchaser has made available to it all requested documents and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives of the Purchaser and obtain any additional information necessary to verify the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased BUYER Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are have not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and been registered under the Securities Act.
(5) The Vendor represents , or under the securities laws of various states, by reason of a specified exemption from the registration provisions thereunder. SELLER acknowledges that the Consideration BUYER Shares will must be acquired solely for held indefinitely unless the account BUYER Shares are subsequently registered under the Securities Act and under applicable state securities laws or an exemption from such registration is available. SELLER has been advised or is aware of the Vendorprovisions of Rule 144 promulgated under the Securities Act which permits limited resale of the securities purchased in a private placement subject to the satisfaction of certain conditions including, solely for investment purposes and not with a view to resale or distribution, and that no among other person has, or will acquire, any direct or indirect interest in the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone elsethings, the Consideration Sharesavailability of certain current public information about BUYER and compliance with applicable requirements regarding the holding period, or any interest thereinthe amount of securities to be sold, and the Vendor has no plans to enter into any such contract, undertaking, agreement or arrangementmanner of sale. The Vendor understands that he may not dispose of the Consideration Shares, or any part thereof, or any interest therein, unless SELLER is a sophisticated investor with knowledge and until legal counsel for Purchaser shall have provided its written opinion that the intended disposition does not violate the law of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferable, that it will not be possible for the Vendor to liquidate the Consideration Shares readily experience in case of an emergency and, therefore, must bear the business and financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor matters and is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor in, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability able to bear the financial economic risk and lack of an investment liquidity inherent in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from owning the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements set forth herein.
(8) The Vendor BUYER Shares. SELLER understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange Governmental Authority has been asked to rule on nor has it ruled on the tax or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits consequences of the Consideration Sharestransactions contemplated hereby. SELLER represents and covenants that SELLER is an “Accredited Investor” as defined in Rule 501(a) of Regulation D under the Securities Act. SELLER understands that all certificates for BUYER Shares shall bear a legend in substantially the following form: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, nor have any such agenciesOR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED, governmental authoritiesSOLD TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT SUCH REGISTRATION OR THE DELIVERY TO THE ISSUER OF AN OPINION OF COUNSEL, regulatory bodiesSATISFACTORY TO THE ISSUER, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration SharesTHAT SUCH DISPOSITION WILL NOT REQUIRE REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT, AS AMENDED, OR ANY STATE SECURITIES LAWS.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.”
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges Lender understands and agrees that the Purchaser is a reporting company in Canada consummation of this Agreement including entering into the Debenture as contemplated hereby, constitutes the offer and the United States and therefore files information with the Ontario Securities Commission and with sale of securities under the Securities Act. Lender agrees that such transactions shall be consummated in reliance on exemptions from the registration and Exchange Commission prospectus delivery requirements of such statutes which depend, among other items, on the circumstances under which such securities are acquired. In order to provide documentation for reliance upon exemptions from the registration and prospectus delivery requirements for such transactions Lender will sign appropriate representations and warranties related to its suitability to invest in the United States ("Public Information"). The Vendor represents that it has reviewed the Public Information Company, including an investment letter and is fully familiar with Purchaser's current business and future prospects. All statements, facts, representations, projections, descriptions, estimates, opinions, views, expectations, plans, observations, analyses, judgments, forecasts, assessments, warranties, and assumptions set forth suitability questionnaire which are contained in the Public Information are subject to, and qualified in their entirety by, this Agreement.
(2) The Vendor acknowledges “suitability letter” attached hereto as appendix “A.” Lender understands that the Purchaser has made available to it all requested documents Debenture and records in its possession, and has offered to the Vendor an opportunity to discuss this transaction with the Purchaser and/or representatives any shares of the Purchaser and obtain any additional information necessary to verify Company received on conversion of the accuracy of any information furnished. The Vendor acknowledges that no information furnished by the Purchaser constitutes investment, accounting, legal or tax advice. The Vendor is relying solely upon itself and its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation in making a decision to sell the Purchased Shares for the Consideration Shares. The Consideration Shares are speculative investments which involve a substantial degree of risk with no assurance of any income from such investments and the possibility that such Consideration Shares may become worthless. The Purchasers acknowledges that the Consideration Shares are Debenture have not traded on any stock exchange in the United States and that there is only a limited market for the Consideration Shares in the United States. The Vendor must therefore be prepared to bear the economic risks of owning the Consideration Shares for an indefinite period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not being registered under the laws of any jurisdiction and are being sold pursuant to an exemption from registration set forth in the Securities Act of 1933, as amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor with all information that would be included in the applicable registration statement if the Consideration Shares were offered and been registered under the Securities Act.
(5) Act and must be held indefinitely without any transfer, sale, or other disposition unless such Debenture or shares are subsequently registered under the Securities Act or registration is not required under the Securities Act in reliance on an available exemption. The Vendor represents that Debenture and any shares on conversion of the Consideration Shares Debenture to be received by the Lender under the terms of this Agreement will be acquired solely for the account of the VendorLender’s own account, solely for investment purposes investment, and not with a view to the present intention of resale or distribution, and distribution of all or any part of the securities. Lender agrees that no other person has, he will refrain from transferring or will acquire, any direct or indirect interest in otherwise disposing of the Consideration Shares. The Vendor has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge to such person, or anyone else, the Consideration SharesDebenture, or any interest therein, in such manner as to violate the Securities Act or any applicable state securities law regulating the disposition thereof. Lender is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act and the Vendor has adequate means for providing for his current needs and possible personal contingencies and has no plans need now and anticipates no need in the foreseeable future to enter into any such contract, undertaking, agreement sell the Debenture or arrangementshares received on conversion of the Debenture or have the Debenture repaid prior to its maturity date. The Vendor Lender understands that he may not dispose Debenture is being entered into in reliance on specific exemptions from the registration requirements of the Consideration Shares, or any part thereof, or any interest therein, unless Federal and until legal counsel for Purchaser shall have provided its written opinion state securities laws and that the intended disposition does not violate Company is relying upon the law truth and accuracy of any jurisdiction. The Vendor acknowledges that the Consideration Shares are non-transferableLender’s representations, that it will not be possible for the Vendor to liquidate the Consideration Shares readily in case of an emergency andwarranties, therefore, must bear the financial risk of owning the Consideration Shares investment for an indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating investments. The investments of the Vendor inagreements, and their commitments to, all non-liquid investments (including an investment in Purchaser) are reasonable in relation to their respective net worths, and the Vendor has the ability to bear the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and representatives, harmless from and against any and all loss, liability, cost, damage, expense (including attorney's fees and expenses) and claims arising out of, in connection with or resulting (i) from the sale or distribution of any Consideration Shares by the Vendor in violation of any applicable law, rule or regulation, and (ii) any misrepresentation by the Vendor or any breach of any warranties herein or any covenants or agreements understandings set forth hereinherein to determine Lender’s suitability to loan the Company the funds and accept the Debenture.
(8) The Vendor understands and acknowledges that no federal or state agency, governmental authority, regulatory body, stock exchange or other entity in the United States, or any other jurisdiction, has made any finding or determination as to the merits of the Consideration Shares, nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or other entities made any recommendation or endorsement with respect to the Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the Consideration Shares were not offered or distributed to the Vendor through an advertisement in printed media of general and regular paid circulation, radio or television, and (b) they did not attend any seminars or meetings regarding this transaction, in which the attendees were invited by any general solicitation or general advertising.
Appears in 1 contract