Securities Representations. (i) the Parent is a reporting issuer under Applicable Securities Legislation in at least one of the Reporting Jurisdictions and its Common Shares are listed for trading on the TSX; (ii) the Parent has complied and will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the 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order or ruling suspending the sale or ceasing the trading in any securities of the Parent has been issued (and has not been revoked or otherwise expired) by any securities regulatory authority or, to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authority. (iv) the 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 been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened; (vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports; (vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common 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 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 (viii) the 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 a control distribution as defined in National Instrument 45-102; (E) no unusual effort is made to prepare the market or to create a demand for the 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 insider or officer of the Parent, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities Legislation.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Atna Resources LTD)
Securities Representations. (a) The shares of common stock of Acquisition are being acquired for the account of the Shareholders and not with a view to sale in connection with any distribution of the Acquisition common stock;
(b) Each of the Shareholders is acquiring the Acquisition common stock hereunder without having received 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 Parent is a reporting issuer under Applicable Securities Legislation in at least one shares of Acquisition common stock referred to herein are being acquired after adequate investigation of the Reporting Jurisdictions business plan and its Common Shares are listed for trading on the TSX;
prospects of Acquisition; (ii) the Parent has complied and will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the issuance that none of the Lender Warrants;
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) No order or ruling suspending the sale or ceasing the trading in any securities each of the Parent 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 issued (afforded the opportunity to ask questions with respect thereto; and has not been revoked or otherwise expired) by any securities regulatory authority or, to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authority.
(iv) the 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 been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best each of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common 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 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
(viii) the 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the 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 insider or officer of the Parent, the selling security holder has no reasonable grounds to believe Shareholders specifically acknowledges that the Parent is 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 default of any Applicable Securities Legislationparticular, that it will ever have cash available for distribution to its stockholders.
Appears in 1 contract
Securities Representations. (ia) BHI is an "accredited investor" as that term is defined in Rule 501 of Regulation D promulgated under the Parent Securities Act of 1933, as amended (the "Securities Act"). BHI is not a reporting issuer "U.S. person" as that term is defined under Applicable Rule 902 of Regulation S promulgated under the Securities Legislation in at least one of the Reporting Jurisdictions and its Common Shares are listed for trading on the TSX;
(ii) the Parent has complied and will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the issuance of the Lender Warrants;
(iii) No order or ruling suspending the sale or ceasing the trading in any securities of the Parent Act. This Agreement has been issued (and has not been revoked or otherwise expired) executed by any securities regulatory authority or, to BHI outside the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authority.
(iv) the 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 been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common 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 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
(viii) the 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 "United States" (as defined in National Instrument 45-102Rule 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
(b) BHI is not acquiring the Shares for the account or benefit of any U.S. person. The Shares are being acquired by BHI for investment purposes only, for BHI's own account and not with the view to any resale or distribution thereof, and BHI is not participating, directly or indirectly, in an underwriting of such Shares, and will not take, or cause to be taken, any action that would cause BHI to be deemed an "underwriter" of such Shares as defined in Section 2(11) of the Lender Warrants;Securities Act. BHI acknowledges that BHI has been offered an opportunity to ask questions of, and received answers from, Parent concerning Parent and its proposed investments, and that, to BHI's knowledge, Parent has fully complied with any request for such information. BHI has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, 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.
(Cc) 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 BHI is not relying on Parent with respect to 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
SECTION 1. ORGANIZATION; GOOD STANDING; QUALIFICATION. Clearwire is a control distribution as defined company duly organized, validly existing, and in National Instrument 45-102;
(E) no unusual effort is made to prepare good standing under the market or to create a demand for the securities that are the subject laws of the trade;
(F) no extraordinary commission or consideration Luxembourg. Parent is paid to a Person company duly organized, validly existing, and in respect of such trade; and
(G) if good standing under the selling security holder is an insider or officer laws of the ParentState of Delaware. Each of Clearwire and Parent has all requisite corporate power and authority to execute and deliver, and carry out the selling security holder has no reasonable grounds provisions of, this Agreement and any Ancillary Agreement to believe that the Parent which it is in default of any Applicable Securities Legislationa party.
Appears in 1 contract
Securities Representations. (ia) the Parent Each Shareholder is a reporting issuer resident of the state set forth 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 Applicable the Securities Legislation Act of 1933, as amended (the "1933 Act").
(b) Each Shareholder has read the 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 representatives of Axiom and to ask questions of them. Without limiting the foregoing, each Shareholder understands and acknowledges that 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 at least 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 Reporting Jurisdictions and its Common Shares are listed for trading on the TSX;
(ii) the Parent has complied and will comply with all Applicable Laws and regulationsSecurities Reports, including Applicable Securities Legislation, including the TSX Rules in connection with the 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 has not been revoked or otherwise expired) by any securities regulatory authority or, sufficient knowledge to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authorityunderstand all such risks.
(ivd) Each Shareholder is acquiring the 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 been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common 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 Lender upon opinion of counsel, which opinion is satisfactory to Axiom, may be made without violating the exercise registration provisions of the Lender Warrants 1933 Act or applicable securities laws of the jurisdiction in which such Shareholder resides. The Axiom Shares to be acquired by the Shareholders are "restricted securities" within the meaning of Rule 144 under the 1933 Act and will have not been registered under the 1933 Act and therefore must be duly and validly authorized and reserved for issuance held indefinitely unless they are subsequently registered under the 1933 Act or an exemption from registration is available.
(e) Each Shareholder understands that there shall be endorsed on the certificate evidencing the Axiom Shares delivered contemporaneously herewith a legend substantially similar to the Lenderfollowing: "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 his current needs and personal contingencies, (iii) such Shareholder has no need for liquidity in the Axiom Shares acquired in connection herewith, (iv) such Shareholder maintains his domicile and is not a transient or temporary resident at the address shown below and (v) all of such Shareholder's investments in and commitments to non-liquid assets and similar investments are, and upon the exercise after such Shareholder's receipt of the Lender WarrantsAxiom Shares, 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 reasonable in relation to such Shareholder's net worth and delivered to the Lender in compliance with all Applicable Securities Legislation; andcurrent needs.
(viiig) Each Shareholder understands that the first trade Axiom Shares are being issued in reliance on specific exemptions from the registration requirements of Federal and state securities laws and that Axiom and the principals and controlling persons thereof are relying upon the truth and accuracy of the Lender Warrants or representations, warranties, agreements, acknowledgments, and understandings set forth herein in order to determine 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 applicability of such trade;
(B) at least four months have elapsed from exemptions and 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the securities that are the subject of the trade;
(F) no extraordinary commission or consideration is paid to a Person in respect suitability of such trade; and
(G) if the selling security holder is an insider or officer of the Parent, the selling security holder has no reasonable grounds Shareholder to believe that the Parent is in default of any Applicable Securities Legislationacquire Axiom Shares.
Appears in 1 contract
Sources: Merger Agreement (Axiom Inc)
Securities Representations. The Lender hereby represents and warrants to the Borrower that (i) it is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D promulgated under the Parent is a reporting issuer under Applicable Securities Legislation in at least one Act of 1933, as amended (the Reporting Jurisdictions and its Common Shares are listed for trading on the TSX;
“Securities Act”), (ii) it understands that the Parent has complied Note and will comply the shares underlying the Note (collectively, the “Securities”) have not been registered under the Securities 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 Securities for the Lender’s own account for investment and not with all Applicable Laws and regulationsa view toward the resale or distribution to others, including Applicable Securities Legislation(iii) the Lender, including if an entity, further represents that it was not formed for the TSX Rules in connection with purpose of purchasing the Securities, (iv) the Lender acknowledges that the 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 Note has not been revoked or otherwise expiredreviewed by the United States Securities and Exchange Commission (the “SEC”) by nor any securities state regulatory authority or, to since the best knowledge issuance of the Credit PartiesNote is intended to be exempt from the registration requirements of Section 4(2) of the Securities Act and Rule 506 of Regulation D, is pending, contemplated or threatened by any securities regulatory authority.
(iv) the 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 ceasingthe Lender agrees not to sell, halting pledge, assign or suspending trading nor prohibiting the sale of Common Shares has been issued to and is outstanding against the Parent otherwise transfer or its Directors, officers or promoters and, to the best dispose of the Parent’s knowledgeSecurities unless they are registered under the Securities Act and under any applicable state securities or “blue sky” laws or unless an exemption from such registration is available, no investigation or proceedings for such purposes are pending or threatened;
and (vi) the Parent has complied in all material respects with all Lender acknowledges receipt and careful review of the requirements of National Instrument 43-101Note, including the Borrower’s filings with the SEC (including, without limitation, any 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 Borrower with respect to all information regarding the preparation and filing of any technical reports;
(vii) upon deliveryBorrower, the Lender Warrants are duly terms and validly created, authorized and issued. The Common Shares to be issued to the Lender upon the exercise conditions of the Lender Warrants are purchase and will be duly and validly authorized and reserved for issuance any additional information that the Borrower has requested or desired to the Lenderknow, and 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
(viii) the 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 afforded the opportunity to ask questions of Canada for at least four months immediately preceding the date of such trade;
(B) at least four months have elapsed and receive answers from the distribution date (as defined in National Instrument 45-102) duly authorized officers or other representatives of the Lender Warrants;
(C) certificates representing Borrower concerning the Lender Warrants issued on or within four months after Borrower and 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the securities that are the subject terms and conditions 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 insider or officer of the Parent, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities Legislationpurchase.
Appears in 1 contract
Securities Representations. Each Noteholder severally and not jointly represents and warrants to, and agrees with, each of the Issuers and each Guarantor as of the Closing Date and as of each date it acquires any Notes (whether by assignment or otherwise) that:
(a) It is either (A) a Qualified Institutional Buyer, (B) an Institutional Accredited Investor or (C) a non-U.S. Person (as such term is defined in Regulation S under the Securities Act) and will not acquire the Notes for the account or benefit of any U.S. Person;
(b) It is acquiring the Notes for its own account, for investment purposes only and not with a view to any distribution thereof that would not otherwise comply with the Securities Act and any Applicable Law;
(c) It (i) understands that the Parent is a reporting issuer Notes have not been registered under Applicable the Securities Legislation Act and the Notes are being issued by the Issuers in at least one transactions exempt from the registration requirements of the Reporting Jurisdictions Securities Act and its Common Shares are listed for trading on (ii) agrees that all or any part of the TSXNotes 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;
(iid) It understands that the Parent has complied 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 will comply with all Applicable Laws and regulationsthat, including Applicable Securities Legislationif applicable, including Rule 144 may afford the TSX Rules basis for sales only in limited amounts;
(e) Except as disclosed, it did not employ any broker or finder in connection with the issuance of the Lender Warrants;
(iii) No order transactions contemplated in this Agreement and no fees or ruling suspending the sale or ceasing the trading in any securities of the Parent has been issued (and has not been revoked or otherwise expired) by any securities regulatory authority or, commissions are payable to the best knowledge of Noteholders; it being understood that the Credit Parties, is pending, contemplated Closing Payments do not constitute fees or threatened by any securities regulatory authority.
(iv) the 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 been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common 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 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 Legislationcommissions; and
(viiif) It has been furnished with or has had access to the first trade 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.
(g) Each Noteholder understands that the Issuers will rely upon the accuracy and truth of the Lender Warrants or foregoing representations and warranties and each Noteholder hereby consents to such reliance.
(h) Each Noteholder acknowledges that Notes shall bear a legend substantially in the Common Shares acquired upon 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 (1) 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 exercise thereof by the holder thereof will be exempt from the prospectus requirements of the Applicable Securities Legislation provided that:
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) 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;
IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) at least four months have elapsed from the distribution date (as defined in National Instrument 45-102) of the Lender Warrants;
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) certificates representing the Lender Warrants issued on or within four months after the Effective DateIT IS AN “INSTITUTIONAL” ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), were issued with a legend stating the prescribed restricted period in accordance with Section 2.5 of National Instrument 45(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-102;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.
(Dj) such trade is not a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the 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 insider or officer of the Parent, the selling security holder has no reasonable grounds to believe Each Noteholder acknowledges that the Parent is Notes shall bear any legend set forth in default of any Applicable Securities Legislationapplicable Intercreditor Agreement until no longer required by such document.
Appears in 1 contract
Sources: Second Lien Note Purchase Agreement (Emerge Energy Services LP)
Securities Representations. (a) Sellers acknowledge that there has been made available to Sellers the opportunity to obtain additional information to evaluate the merits and risks of an investment in the Consideration Stock. Sellers have had the opportunity to ask questions of, and has received satisfactory answers from, representatives of Purchaser concerning the business of Purchaser. No oral representations have been made or oral information furnished to Sellers or Sellers' advisors in connection with the Consideration Stock.
(b) Sellers understand and acknowledge that (i) the Parent shares of Consideration Stock have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), and applicable state securities laws (collectively, the "Securities Laws"), (ii) that the Consideration Stock is being sold to the Sellers pursuant to exemptions from registration requirements under the Securities Laws, and (iii) that Purchaser is relying on Sellers' representations set forth in this Agreement in entering into this Agreement.
(c) Sellers understand and acknowledge that no federal or state agency has recommended or endorsed the purchase of the Consideration Stock.
(d) Sellers understand and acknowledge that there will be no public market for the Consideration Stock, that there will be restrictions on the transferability of the Consideration Stock and that Sellers will not be able to readily liquidate an investment in the Consideration Stock.
(e) Sellers are acquiring the Consideration Stock solely for their own account, for investment, and not with a reporting issuer under Applicable Securities Legislation in view to the distribution or resale thereof, and Sellers have no present intention, agreement, understanding or arrangement to sell, assign, transfer, hypothecate or otherwise dispose of all or any part of the Consideration Stock or any interest therein.
(f) Sellers each meet the requirements of at least one of the Reporting Jurisdictions and its Common Shares are listed suitability standards for trading an "accredited investor" set forth on the TSX;Accredited Investor Certification attached hereto as Exhibit C. ---------
(iig) Sellers, together with their financial advisors, have such knowledge and experience in financial, tax, business and investment matters so as to enable Sellers to utilize the Parent has complied information made available to Sellers concerning the Purchaser, evaluate the merits and will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the issuance risks 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 has not been revoked or otherwise expired) by any securities regulatory authority or, to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authority.
(iv) the 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 an investment in the provinces Consideration Stock and territories of Canada;
(v) no order ceasing, halting or suspending trading nor prohibiting the sale of Common Shares has been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, make an informed investment decision with respect to the preparation and filing of any technical reports;Consideration Stock.
(viih) upon deliverySellers understand and acknowledge that Purchaser has only recently been organized, the Lender Warrants are duly has only a short financial and validly created, authorized operating history and issued. The Common 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 upon the exercise of the Lender Warrants, such Common Shares will be duly authorized, validly issued as fully paid and non-assessable shares that investment 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
(viii) the 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the 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 insider or officer of the Parent, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities LegislationPurchaser involves significant risks.
Appears in 1 contract
Securities Representations. (1) The Vendor acknowledges that 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 Parent is a reporting issuer under Applicable Securities Legislation sale or distribution of any Consideration Shares by the Vendor in at least one violation of the Reporting Jurisdictions any applicable law, rule or regulation, and its Common Shares are listed for trading on the TSX;
(ii) any misrepresentation by the Parent has complied and will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the issuance Vendor or any breach of the Lender Warrants;
(iii) No order any warranties herein or ruling suspending the sale any covenants or ceasing the trading in any securities of the Parent has been issued (and has not been revoked or otherwise expired) by any securities regulatory authority or, to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authorityagreements set forth herein.
(iv) the Parent is not in default of any Applicable Securities Legislation 8) The Vendor understands and acknowledges that no federal 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 state agency, governmental authority, regulatory body, stock exchange or other securities regulatory authorities entity in the provinces and territories of Canada;
(v) no order ceasingUnited States, halting or suspending trading nor prohibiting the sale of Common Shares any other jurisdiction, has been issued to and is outstanding against the Parent made any finding or its Directors, officers or promoters and, determination as to the best merits of the Parent’s knowledgeConsideration Shares, no investigation nor have any such agencies, governmental authorities, regulatory bodies, stock exchanges or proceedings for such purposes are pending other entities made any recommendation or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, endorsement with respect to the preparation and filing of any technical reports;Consideration Shares.
(vii9) upon deliveryThe Vendor represents, warrants, and acknowledges that (a) the Lender Warrants are duly and validly created, authorized and issued. The Common Consideration Shares to be issued were not offered or distributed to the Lender upon the exercise Vendor through an advertisement in printed media of the Lender Warrants are general and will be duly and validly authorized and reserved for issuance to the Lenderregular paid circulation, radio or television, and upon (b) they did not attend any seminars or meetings regarding this transaction, in which the exercise of 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 Lender Warrants, such Common Securities Act as set forth at Schedule 2.8 hereto.
(11) The Vendor understands and acknowledges that the Consideration Shares will be duly authorized, validly issued are "restricted securities," as fully paid and non-assessable shares in defined by the capital of the ParentSecurities Act, and agree to resell 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 Securities only (a) pursuant to a registration statement under the Parent Securities Act, or its Subsidiaries. The Lender Warrants and Common Shares have been or will be, as applicable, offered, issued, sold and delivered (b) pursuant to the Lender in compliance with all Applicable Securities Legislation; and
(viii) the first trade a written opinion of the Lender Warrants or the Common Shares acquired upon the exercise thereof by the holder thereof will be legal counsel for Purchaser stating that such resale is 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the 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 insider or officer of the Parent, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities Legislationregistration.
Appears in 1 contract
Securities Representations. In connection with the issuance to Sellers of the Purchaser’s Common Stock, the Sellers hereby agree, represent and warrant as follows:
(a) Each Seller (collectively, the “Holders”) will acquire the Purchaser’s Common Stock solely for the Holder’s own account.
(b) The Holders are aware of the Purchaser’s business affairs and financial condition and have acquired sufficient information about the Purchaser to reach an informed and knowledgeable decision to acquire the Purchaser’s Common Stock. The Holders further represent and warrant that Holders have discussed the Purchaser 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 in response to all inquiries in respect thereof.
(c) The Holders realize that Holders’ acquisition of the Purchaser’s Common Stock will be a highly speculative investment, and Holders are able, without impairing Holders’ financial condition, to hold the Purchaser’s Common Stock for an indefinite period of time and to suffer a complete loss of Holders’ investment.
(d) The Purchaser has disclosed to the Holders that: (i) the Parent is a reporting issuer under Applicable Securities Legislation in at least one sale of the Reporting Jurisdictions Purchaser’s Common Stock has not been registered under the Securities Act, and its the Purchaser’s Common Shares are listed for trading on Stock must be held indefinitely unless a transfer of them is subsequently registered under the TSX;
Securities Act or an exemption from such registration is available; and (ii) the Parent has complied and Purchaser will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules make a notation in connection with the issuance its records 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 has not been revoked or otherwise expired) by any securities regulatory authority or, to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authorityaforementioned restrictions on transfer.
(ive) 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 covering such proposed disposition and such disposition is made in accordance with said Registration Statement; or (ii) the Parent is not in default Holders shall have (1) notified the Purchaser of any Applicable Securities Legislation or the TSX Rules nor is it included in proposed disposition and furnished the Purchaser with a list detailed statement of defaulting reporting issuers maintained the circumstances surrounding the proposed disposition, and (2) if reasonably requested by any securities commissions where the Parent is a reporting issuer or other securities regulatory authorities in Purchaser, furnished the provinces and territories Purchaser with an opinion of Canada;
(v) no order ceasing, halting or suspending trading nor prohibiting the sale of Common Shares has been issued to and is outstanding against the Parent or its Directors, officers or promoters and, Holder’s own counsel to the best effect that such disposition will not require registration of such shares under the Securities Act, and such opinion of the ParentHolder’s knowledge, no investigation or proceedings counsel shall have been concurred in by counsel for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common 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 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 ParentPurchaser, and the Lender will Purchaser shall have advised the Holders of such concurrence.
(g) The Purchaser shall not be required (i) to transfer on its books any Purchaser’s Common Stock of the legal and registered Purchaser which shall have been sold or transferred in violation of any of the provisions set forth in this Agreement or (ii) to treat as owner of such Purchaser’s Common Shares and will have good title thereto free and clear of all Liens arising by, through Stock or under to accord the Parent right to vote as such owner or its Subsidiaries. The Lender Warrants and to pay dividends to any transferee to whom such Purchaser’s Common Shares Stock shall have been or will be, as applicable, offered, issued, sold and delivered so transferred.
(h) All certificates representing any Purchaser’s Common Stock subject to the Lender in compliance with all Applicable Securities Legislation; and
(viii) provisions of this Agreement shall have endorsed thereon the 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 Datefollowing legend: “THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the 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 insider or officer of the ParentAS AMENDED, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities LegislationAND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED 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.”
Appears in 1 contract
Securities Representations. (a) Purchaser acknowledges that that there has been made available to Purchaser the opportunity to obtain additional information to evaluate the merits and risks of an investment in the Purchased Shares. Purchaser has had the opportunity to ask questions of, and has received satisfactory answers from, Sellers concerning the business of the Company and its Subsidiaries. No oral representations have been made or oral information furnished to Purchaser's advisors in connection with the Purchased Shares.
(b) Purchaser understands and acknowledges that (i) the Parent is a reporting issuer Purchased Shares have not been registered under Applicable the Securities Legislation in at least one of the Reporting Jurisdictions and its Common Shares are listed for trading on the TSX;
Laws, (ii) that the Parent has complied Purchased Shares are being sold to the Purchaser pursuant to exemptions from registration requirements under the Securities Laws, and will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the issuance of the Lender Warrants;
(iii) No order or ruling suspending that Sellers are relying on the sale or ceasing the trading Purchaser's representations set forth in any securities of the Parent has been issued (and has not been revoked or otherwise expired) by any securities regulatory authority or, to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authoritythis Agreement in entering into this Agreement.
(ivc) Purchaser understands and acknowledges that no federal or state agency has recommended or endorsed the Parent is purchase of the Purchased Shares.
(d) Purchaser understands and acknowledges that there will be no public market for the Purchased Shares, that there will be restrictions on the transferability of the Purchased Shares and that Sellers will 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 be able to readily liquidate an investment in the provinces and territories of Canada;Purchased Shares.
(ve) no order ceasingPurchaser is acquiring the Purchased Shares solely for its own account, halting or suspending trading nor prohibiting the sale of Common Shares has been issued to for investment, and is outstanding against the Parent or its Directors, officers or promoters and, not with a view to the best distribution or resale thereof, and Purchaser has no present intention, agreement, understanding or arrangement to sell, assign, transfer, hypothecate or otherwise dispose of all or any part of the Parent’s knowledge, no investigation Purchased Shares or proceedings for such purposes are pending or threatened;any interest therein.
(vif) Purchaser, together with its financial advisors, have such knowledge and experience in financial, tax, business and investment matters so as to enable Purchaser to utilize the Parent has complied information made available to Purchaser concerning the Company, evaluate the merits and risks of an investment in all material respects with all of the requirements of National Instrument 43-101, including without limitation, Purchased Shares and to make an informed investment decision with respect to the preparation and filing of any technical reports;Purchased Shares.
(viig) upon deliveryPurchaser understands and acknowledges that the Company has only recently been organized, the Lender Warrants are duly has only a short financial and validly created, authorized operating history and issued. The Common 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 upon the exercise of the Lender Warrants, such Common Shares will be duly authorized, validly issued as fully paid and non-assessable shares that investment 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
(viii) the 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the 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 insider or officer of the Parent, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities LegislationCompany involves significant risks.
Appears in 1 contract
Securities Representations. (ia) the Parent is a reporting issuer under Applicable Securities Legislation in at least one Neither of the Reporting Jurisdictions and its Common Shares are listed for trading on Shareholders is an "accredited investor" as defined in Rule 501(a) under the TSX;
(ii) the Parent has complied and will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the 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 has not been revoked or otherwise expired) by any securities regulatory authority or, to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authorityAct.
(ivb) Each of the Parent Shareholders is acquiring the Shares for his own account for investment only, and not with a view to, or for sale in default connection with, any distribution of the Shares in violation of the Securities Act, or any Applicable rule or regulation under the Securities Legislation or Act.
(c) Each of the TSX Rules nor Shareholders has had adequate opportunity to obtain from representatives of the Buyer such information about the Buyer as is it included necessary for the undersigned to evaluate the merits and risks of its acquisition of the Shares.
(d) Each of the Shareholders has sufficient expertise in a list of defaulting reporting issuers maintained by any securities commissions where business and financial matters to be able to evaluate the Parent is a reporting issuer or other securities regulatory authorities risks involved in the provinces and territories of Canada;
(v) no order ceasing, halting or suspending trading nor prohibiting the sale of Common Shares has been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best acquisition of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, Shares and to make an informed investment decision with respect to the preparation and filing of any technical reports;such acquisition.
(viie) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common Shares to be issued to the Lender upon the exercise Each of the Lender Warrants Shareholders 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, transferred 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 duly and validly authorized and reserved for issuance to placed on the Lender, and 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
(viiicertificate(s) the 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 DateShares: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the 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 insider or officer of the ParentAS AMENDED, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities LegislationAND 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."
Appears in 1 contract
Securities Representations. (a) Each Seller and the 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 Parent is shares of Common Stock issued pursuant to this Agreement have not been registered under the Securities Act, or any state securities law by reason of their issuance in a reporting issuer under Applicable Securities Legislation in at least one transaction exempt from the registration requirements of the Reporting Jurisdictions Securities Act pursuant to Section 4(2) and its Common 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 under the Securities Act and such state law is available.
(b) Each Seller and the Stockholder agree that Shares are listed for trading on shall not be sold or transferred unless either (i) they first shall have been registered under the TSX;
Securities Act of 1933, as amended (the "Act"), or (ii) the Parent has complied first shall have been furnished with an opinion of legal counsel, reasonably satisfactory to the Parent and will comply with all Applicable Laws and regulationswhich may be counsel to the Parent, including Applicable Securities Legislation, including to the TSX Rules in connection with effect that such sale or transfer is exempt from the issuance registration requirements of the Lender Warrants;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."
(iiic) No order The Parent has granted the Sellers and the Stockholder and their attorneys or ruling suspending other representatives access to all information about the sale Parent which the Sellers and the Stockholder have requested; and the Sellers, the Stockholders and their attorneys or ceasing other representatives have had the trading in any securities opportunity to ask questions of, and receive answers from, representatives of the Parent has been issued (concerning such information and has not been revoked or otherwise expired) by any securities regulatory authority or, to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authorityParent's financial condition and prospects.
(ivd) The principal office of the Sellers and the place at which the decision by the Sellers and the Stockholder to participate 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. Representations of the Buyer and the 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 Buyer and the Parent is a reporting issuer or other securities regulatory authorities in the provinces jointly and territories of Canada;
(v) no order ceasing, halting or suspending trading nor prohibiting the sale of Common Shares has been issued to severally represents and is outstanding against the Parent or its Directors, officers or promoters and, warrants to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common 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 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, Sellers 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, Stockholders as applicable, offered, issued, sold and delivered to the Lender in compliance with all Applicable Securities Legislation; and
(viii) the 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 thatfollows:
(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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the 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 insider or officer of the Parent, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities Legislation.
Appears in 1 contract
Securities Representations. (ia) the Parent Seller is domiciled in and each Shareholder is a reporting issuer resident of the Commonwealth of Pennsylvania, and Seller and each Shareholder is an "accredited investor" as that term is in Rule 501 of Regulation D under Applicable the Securities Legislation Act.
(b) 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 Buyer, the Shares and the Warrants, and any Common Stock issuable upon exercise of the Warrants (collectively the "Securities"), and has provided answers to Seller and all of the Shareholders' questions concerning the Buyer and the Securities. In addition, Seller and each Shareholder has had an opportunity to discuss the Buyer and the Securities with representatives of Buyer and to ask questions of them. Without limiting the foregoing, Seller and each Shareholder understands and acknowledges that neither Buyer nor anyone acting on its behalf has made any representations or warranties other than those contained herein respecting Buyer or the 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 at least the belief that they were made on behalf of Buyer.
(c) 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 Reporting Jurisdictions and its Common Shares are listed for trading on the TSX;
(ii) the Parent has complied and will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the 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 (Reports and has not been revoked or otherwise expired) by any securities regulatory authority or, sufficient knowledge to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authorityunderstand all such risks.
(ivd) Seller and each Shareholder is acquiring the 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 been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common Shares to be issued to it without a view to any distribution or resale thereof, other than a resale that, in the Lender upon opinion of Seller's counsel, which opinion is satisfactory to Buyer, may be made without violating the exercise registration provisions of the Lender Warrants Securities Act or applicable Pennsylvania securities laws. The Securities are "restricted securities" within the meaning of Rule 144 under the Securities Act and will have not been registered under the Securities Act and therefore must be duly held indefinitely unless they are subsequently registered under the Securities Act or an exemption from registration is available.
(e) Seller and validly authorized and reserved for issuance each Shareholder understands that there shall be endorsed on the certificate evidencing each share of Common Stock issued pursuant to this Agreement or the Warrant delivered contemporaneously herewith a legend substantially similar to the Lenderfollowing: "THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, and upon the exercise of the Lender WarrantsAS AMENDED (THE '1933 ACT'), such Common Shares will be duly authorizedOR 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, validly issued as fully paid and non-assessable shares in the capital of the ParentTRANSFERRED, 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 byPLEDGED OR DISTRIBUTED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT REGISTERING THE SHARES UNDER THE 1933 ACT, through or under the Parent or its Subsidiaries. The Lender Warrants and Common Shares have been or will beOR IN LIEU THEREOF, as applicableAN OPINION OF COUNSEL, offeredWHICH OPINION IS SATISFACTORY TO THE ISSUER OF THE SHARES, issued, sold and delivered to the Lender in compliance with all Applicable Securities Legislation; and
(viii) the 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the 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 insider or officer of the Parent, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities LegislationTO THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACTS."
Appears in 1 contract
Securities Representations. Each of Holders hereby represent and warrant to ONVC as follows: (i1) each of Holders may not qualify as an "Accredited Investor", as such term is defined in Rule 501(a) to the Securities Act of 1933, as 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; (3) the Parent is Restricted Shares are being acquired solely for each of Holders' own account, for investment, and are not being purchased with a reporting issuer under Applicable Securities Legislation in at least one view to or for the resale, distribution, subdivision, or fractionalization thereof and each of Holders has no present plans to enter into any contract, undertaking, agreement, or arrangement relating thereto; (4) each of Holders understands that none of the Reporting Jurisdictions and its Common Shares are listed for trading on the TSX;
(ii) the Parent has complied and will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the 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 has not been revoked or otherwise expired) by any securities regulatory authority or, to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authority.
(iv) the 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 been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common 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 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 Restricted Shares have been or will bebe registered under the Securities Act, that each of Holders has no rights to require that the Restricted Shares be 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 a substantial period of time and that it may not be possible for each of Holders to liquidate each of Holders' investment in ONVC; and that in any event the Restricted Shares 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 replacement or exchange therefore, are to bear a restrictive legend to this effect; (5) each of Holders is acquiring the Restricted Shares without being furnished any offering literature or prospectus, but each of Holders has been granted, and is relying upon, each of Holders' personal discussions, investigations and due diligence of ONVC and its officers; (6) each of Holders has such knowledge and experience in business and financial matters that each of Holders is capable of evaluating the business and financial matters of ONVC and the risks and merits relating thereto; (7) that there has never been any representation, guarantee, or warranty made to each of Holders by any broker, ONVC, its agents or employees, or any other person, expressly or by implication, as applicableto any gain or profit to be derived from, offered, issued, sold and delivered to the Lender in compliance with all Applicable Securities Legislation; and
(viii) the first trade of the Lender Warrants or the Common Shares acquired upon the exercise thereof by the holder thereof will approximate or exact length of time that each of Holders may 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made required to prepare the market or to create a demand for the 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 remain an insider or officer of the Parentowner of, the selling security holder has no reasonable grounds Restricted Shares, or as to believe that the Parent is in default of any Applicable Securities Legislationother matter not expressly contained herein.
Appears in 1 contract
Sources: Acquisition Agreement (Online Vacation Center Holdings Corp)
Securities Representations. (i) In addition to the Parent is a reporting issuer under Applicable Securities Legislation other representations made in at least one of Sections 3 and 4 hereof, Buyer and Seller herby represent and warrant to the Reporting Jurisdictions and its Common Shares are listed for trading on the TSX;other as follows:
(iia) Each acknowledges that the Parent has complied and will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the 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 has not been revoked or otherwise expired) by any securities regulatory authority or, to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authority.
(iv) the 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 been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon deliveryInterest, the Lender Warrants are duly Warrant and validly created, authorized and issued. The Common Shares to be issued to the Lender shares issuable upon the exercise of the Lender Warrants Warrant (the "Warrant Shares"), as applicable, are and will be duly acquired solely by and validly authorized for the receiving party for investment and reserved not as a nominee or agent for issuance to the Lenderbenefit of any other person or entity, and upon the exercise each has no current intention of distributing, reselling or assigning any 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 Interest or under the Parent or its Subsidiaries. The Lender Warrants and Common Shares have been or will beWarrant, as applicable, offered, issued, sold and delivered to the Lender in compliance with all Applicable Securities Legislation; and
(viii) the 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 other than in accordance with Section 2.5 the provisions of National Instrument 45-102;the Securities Act of 1933, as amended ("1933 Act"), and the rules and regulations adopted by the SEC under the 1933 Act and any other applicable laws.
(Db) such trade Each understands that none of the Interest, the Warrant or the Warrant Shares, as applicable, has been registered under the 1933 Act and that neither RI nor RadNet, Inc. is not a control distribution under obligation to register or assist Buyer or Seller, as defined applicable, in National Instrument 45-102;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.
(Ec) Each is aware that (i) its investment in the Interest, the Warrant and the Warrant Shares, as applicable, involves a possible degree of risk, lack of liquidity and substantial restriction on transferability and (ii) no unusual effort is federal or state agency has made any finding or determination as to prepare the market fairness for investment in, or to create a demand for the securities that are the subject any recommendation or endorsement of the trade;Interest, the Warrant or the Warrant Shares, as applicable.
(Fd) 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 extraordinary commission need for liquidity with respect to its investment in the Interest, the Warrant or consideration the Warrant Shares, as applicable, and is paid able to a Person in respect bear the economic risk of such trade; andthe investment.
(Ge) if Buyer and Seller are each sophisticated and experienced in financial, business and investment matters, are in the selling security holder same business as RI and 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 merits and risks of an insider or officer of investment in the ParentInterest , the selling security holder has no reasonable grounds to believe that Warrant or the Parent is in default of any Applicable Securities LegislationWarrant Shares, as applicable.
Appears in 1 contract
Sources: Purchase Agreement (RadNet, Inc.)
Securities Representations. (i) the Parent is a reporting issuer under Applicable Securities Legislation in at least one of the Reporting Jurisdictions and its Common Shares are listed for trading on the TSX;
(ii) the Parent has complied and will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the 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 has not been revoked or otherwise expired) by any securities regulatory authority or, to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authority.
(iv) the 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 been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common 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 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
(viii) the 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) Each Shareholder hereby acknowledges receipt of (1) Atria's quarterly report on Form 10-Q for the Parent is quarter ending September 30, 1996, (2) the Registration Statement of Atria, dated July 29, 1996, on Form S-1, and has been a reporting issuer in a jurisdiction of Canada for at least four months immediately preceding (3) Atria's 8-K, dated September 10, 1996 (collectively, the date of such trade;"Securities Documents").
(B) at least four months have elapsed from 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) is acquiring Atria's Shares for his own account, and (3) has 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 effect that Atria's Shares may be transferred without registration or unless the transfer of Atria's Shares is covered by an effective registration statement.
(C) The Shareholder receiving Atria Shares represents that he is acquiring the Atria Shares for his own account for investment, and not with a view to the distribution date 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. Such Shareholder understands that, except as may otherwise be provided in the "Registration Rights Agreement" (as defined in National Instrument 45-102) Section 5.8), such Shareholder's ability to dispose of the Lender Warrants;
(C) certificates representing Atria Shares in the Lender Warrants issued on public market for such stock or within four months after otherwise is limited by the Effective DateSecurities Act, were issued with a legend stating including Rule 144 promulgated thereunder, and, therefore, he may have to bear the prescribed restricted risk of his investment in such Atria Shares for an indefinite period in accordance with Section 2.5 of National Instrument 45-102;time.
(D) The Shareholder receiving Atria Shares hereby acknowledges that each certificate representing Atria Shares that are issuable to such trade is Stockholder pursuant to this Agreement shall be stamped or otherwise imprinted with a legend substantially to the following effect: The securities represented by this certificate have not a control distribution been registered under the Securities Act of 1933, as amended (the "Act"), and are "restricted securities" as defined in National Instrument 45-102;
Rule 144 promulgated under the Act. The securities may not be sold or offered for sale or otherwise distributed except (Ei) no unusual effort is made to prepare the market or to create a demand in conjunction with an effective registration statement for the securities that are shares under the subject Act, (ii) in compliance with Rule 144, or (iii) pursuant to an opinion of counsel satisfactory to any of the trade;
(F) no extraordinary commission Acquired Companies that such registration or consideration compliance is paid not required as to a Person in respect of such trade; and
(G) if the selling security holder is an insider sale, offer or officer of the Parent, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities Legislationdistribution.
Appears in 1 contract
Securities Representations. (i) Each Seller believes that he or she --------------------------- is familiar with the Parent is a reporting issuer under Applicable Securities Legislation in at least one business and financial condition, properties, operations and prospects of Purchaser, has been given full access to all material information concerning the condition, properties, operations and prospects of Purchaser, and he or she has had an opportunity to ask such questions of, and to receive such information from, Purchaser as he or she has desired and to obtain any additional information necessary to verify the accuracy of the Reporting Jurisdictions information and data received; such Seller has such knowledge, skill and experience in business, financial and investment matters so that it is capable of evaluating the merits and risks of an acquisition of the Common Stock; such Seller has reviewed his, her or its financial condition and commitments and that, based on such review, such Seller is satisfied that he or she (a) has adequate means of providing for contingencies, (b) has no present or contemplated future need to dispose of all or any of the Common Shares Stock to satisfy existing or contemplated undertakings, needs or indebtedness, (c) is capable of bearing the economic risk of the ownership of the Common Stock for the indefinite future, and (d) has assets or sources of income which, taken together, are listed more than sufficient so that such Seller could bear the loss of the entire value of the Common Stock; such Seller is acquiring the Common Stock solely for trading on the TSX;
(ii) the Parent has complied his, her or its own beneficial account, for investment purposes, and will comply not with all Applicable Laws and regulationsa view to, including Applicable Securities Legislation, including the TSX Rules or for resale in connection with the issuance with, any distribution of the Lender Warrants;
(iii) No order or ruling suspending Common Stock; such Seller understands that the sale or ceasing the trading in any securities of the Parent has been issued (and Common Stock has not been revoked registered under the Securities Act of 1933 or any state securities laws and therefore the Common Stock is "restricted" under such laws; and such Seller has not offered or sold any portion of the Common Stock and has no present intention of reselling or otherwise expired) by disposing of any securities regulatory authority or, to the best knowledge portion of the Credit Parties, is pending, contemplated Common Stock either currently or threatened by any securities regulatory authority.
(iv) after the Parent is not in default passage of a fixed or determinable period of time or upon the occurrence or non-occurrence of any Applicable Securities Legislation predetermined event 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 been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common 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 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
(viii) the 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the 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 insider or officer of the Parent, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities Legislationcircumstance.
Appears in 1 contract
Sources: Stock Sale and Purchase Agreement (AvStar Aviation Group, Inc.)
Securities Representations. (ia) the Parent The Shareholder is a reporting issuer resident of the Commonwealth of Virginia, and is an "accredited investor" as that term is in Rule 501 of Regulation D under Applicable the Securities Legislation Act of 1933, as amended (the "1933 Act").
(b) The Shareholder has read the Securities Reports. ▇▇▇▇▇▇ has made available to the Shareholder all documents that the Shareholder has requested relating to the ▇▇▇▇▇▇ Shares, and has provided answers to all of the Shareholder's questions concerning the ▇▇▇▇▇▇ Shares. In addition, the Shareholder has had an opportunity to discuss the ▇▇▇▇▇▇ Shares with representatives of ▇▇▇▇▇▇ and to ask questions of them. Without limiting the foregoing, the Shareholder understands and acknowledges that neither ▇▇▇▇▇▇ nor anyone acting on its behalf has made any representations or warranties other than those contained herein respecting ▇▇▇▇▇▇ or the future conduct of ▇▇▇▇▇▇'▇ business or of Real-Tool's business, and the Shareholder has not relied upon any representations or warranties other than those contained herein in at least the belief that they were made on behalf of ▇▇▇▇▇▇.
(c) The 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 Reporting Jurisdictions and its Common Shares are listed for trading on the TSX;
(ii) the Parent has complied and will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the 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 (Reports and has not been revoked or otherwise expired) by any securities regulatory authority or, sufficient knowledge to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authorityunderstand all such risks.
(ivd) the Parent is The Shareholder hereby agrees to not in default of any Applicable Securities Legislation sell, 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 otherwise transfer, in the provinces and territories of Canada;aggregate, more than fifty thousand (50,000) ▇▇▇▇▇▇ Shares during any calendar quarter.
(ve) no order ceasing, halting or suspending trading nor prohibiting The Shareholder is acquiring the sale of Common Shares has been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common ▇▇▇▇▇▇ Shares to be issued to him without a view to any distribution or resale thereof, other than a distribution or resale that, in the Lender upon opinion of counsel, which opinion is satisfactory to ▇▇▇▇▇▇, may be made without violating the exercise registration provisions of the Lender Warrants 1933 Act or applicable Virginia securities laws. The ▇▇▇▇▇▇ Shares are "restricted securities" within the meaning of Rule 144 under the 1933 Act and will have not been registered under the 1933 Act and therefore must be duly and validly authorized and reserved for issuance held indefinitely unless they are subsequently registered under the 1933 Act or an exemption from registration is available.
(f) The Shareholder understands that there shall be endorsed on the certificate evidencing the ▇▇▇▇▇▇ Shares delivered contemporaneously herewith a legend substantially similar to the Lenderfollowing: "THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, and upon the exercise of the Lender WarrantsAS AMENDED (THE '1933 ACT'), such Common Shares will be duly authorizedOR 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, validly issued as fully paid and non-assessable shares in the capital of the ParentTRANSFERRED, 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 byPLEDGED OR DISTRIBUTED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT REGISTERING THE SHARES UNDER THE 1933 ACT, through or under the Parent or its Subsidiaries. The Lender Warrants and Common Shares have been or will beOR IN LIEU THEREOF, as applicableAN OPINION OF COUNSEL, offeredWHICH OPINION IS SATISFACTORY TO THE ISSUER OF THE SHARES, issued, sold and delivered to the Lender in compliance with all Applicable Securities Legislation; and
(viii) the 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the 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 insider or officer of the Parent, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities LegislationTO THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACTS."
Appears in 1 contract
Securities Representations. Each Initial Purchaser, severally and not jointly, represents and warrants to, and agrees with, 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), (3) or (7) under the Parent Securities Act) or (C) a non-U.S. Person (as such term is a reporting issuer defined in Regulation S under Applicable the Securities Legislation in at least one Act) and will not acquire the Securities for the account or benefit of the Reporting Jurisdictions and its Common Shares are listed for trading on the TSXany U.S. Person;
(ii) It is acquiring the Parent has complied Securities for its own account, for investment purposes only and will not with a view to any distribution thereof that would not otherwise comply with all Applicable Laws and regulations, including Applicable the Securities Legislation, including the TSX Rules in connection with the issuance of the Lender WarrantsAct;
(iii) No order or ruling suspending It (A) understands that the sale or ceasing Securities have not been registered under the trading Securities Act and that the Securities are being issued by the Issuers in any securities transactions exempt from the registration requirements of the Parent has been issued Securities Act and (and has not been revoked or otherwise expiredB) by agrees that neither all nor any securities regulatory authority or, to the best knowledge part of the Credit Parties, is pending, contemplated Securities may be offered or threatened by any securities regulatory authority.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 Parent is not 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 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 Canadalimited amounts;
(v) Except as disclosed, it did not employ any broker or finder in connection with the transactions contemplated in this Agreement and no order ceasing, halting fees or suspending trading nor prohibiting the sale of Common Shares has been issued to and is outstanding against the Parent or its Directors, officers or promoters and, commissions are payable to the best of Initial Purchasers (it being understood and agreed that the Parent’s knowledge, no investigation Closing Payments do not constitute fees or proceedings for such purposes are pending or threatenedcommissions);
(vi) The source of funds to be used by such Initial Purchaser to pay the Parent has complied in all material respects with all purchase price of the requirements Securities does not include assets of National Instrument 43any 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, including without limitationas amended by Section 3(42) of ERISA (the “Plan Asset Regulation”). As used in this clause (vi), with respect the term “employee benefit plan” shall have the meaning assigned to such term in Article 33 of ERISA, and the preparation and filing term “plan” shall have the meaning assigned thereto in Section 4975(e)(1) of any technical reportsthe Code;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common 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 LenderIt either (A) is, and upon the exercise of the Lender Warrantsfor so long as it holds any Securities, 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, a “venture capital operating company” or wholly owned by a “venture capital operating company” or (B) does not have, and for so long as applicableit holds any Securities, offeredwill not have, issued, sold and delivered “significant equity participation” by benefit plan investors pursuant to the Lender Plan Asset Regulation. The term “venture capital operating company” shall have the meaning assigned to such term in compliance with all Applicable Securities Legislationthe Plan Asset Regulation; and
(viii) The GS Purchasers will provide written notice (which notice may be given by email) to the first trade Parent Issuer within 15 days of the Lender Warrants or the Common Shares acquired upon the exercise thereof by the holder thereof will be exempt from the prospectus requirements occurrence of the Applicable Securities Legislation provided that:
GS Disposition Date, and the Ares Purchasers will provide written notice (Awhich notice may be given by email) to 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) Issuer within 15 days 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the securities that are the subject occurrence 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 insider or officer of the Parent, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities LegislationAres Disposition Date.
Appears in 1 contract
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:
(a) The 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 Seller Shares have not been registered under the Securities Act on the grounds that the sale provided for in this Agreement and the issuance of securities hereunder is exempt from registration under the Securities Act, and 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 Parent is a reporting issuer under Applicable Securities Legislation in at least one Common Stock of the Reporting Jurisdictions and its Common Shares are listed for trading on the TSX;
Holdings, (ii) adequate information concerning Holdings is then available to the Parent 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 complied (i) been provided with and will comply with all Applicable Laws has had a reasonable opportunity to review copies of the reports and regulationsother information set forth on Appendix 1; and (ii) been afforded (A) the opportunity to ask such questions as it has deemed necessary of, including Applicable Securities Legislationand to receive answers from, including Representatives of Holdings concerning the TSX Rules in connection with terms and conditions of the 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 has not been revoked or otherwise expired) by any securities regulatory authority or, Seller Shares pursuant to the best knowledge terms of this Agreement and the Credit Partiesmerits and risks of investing in the Seller Shares; (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 pending, contemplated or threatened by any securities regulatory authoritynecessary to make an informed investment decision with respect to such investment.
(ive) Since November 1, 2007 the Parent is not Seller has not, directly or indirectly, nor has any Person acting at the direction of the Seller, engaged 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 transactions in the provinces and territories securities of Canada;
Holdings (v) no order ceasingincluding, halting or suspending trading nor prohibiting the sale of Common Shares has been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common 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 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
(viii) the 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 (“short sales” as defined in National Instrument 45-102) Rule 3b-3 of the Lender Warrants;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).
(Cf) 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 [The Seller represents that it is not a control distribution an “accredited investor,” as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the market or to create a demand for the securities that are the subject under Regulation D of the trade;
(F) no extraordinary commission or consideration is paid Securities Act, has such knowledge and experience in financial and business matters as to a Person in respect be capable of evaluating the merits and risks of its purchase of the Seller Shares, and has the ability to bear the economic risks of such trade; and
(G) if the selling security holder is an insider or officer of the Parent, the selling security holder has no reasonable grounds to believe that the Parent is in default of any Applicable Securities Legislation.purchase.]5
Appears in 1 contract
Sources: Restricted Stock Agreement (Marketaxess Holdings Inc)
Securities Representations. STC and Holder hereby represent and warrant to Company as follows:
(i1) STC and Holder are "Accredited Investors", as such term is defined in Rule 501(a) to the Securities Act of 1933, as 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; (3) the Parent is Restricted Shares are being acquired solely for STC's and Holder's own account, for investment, and are not being purchased with a reporting issuer under Applicable Securities Legislation in at least one view to or for the 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 none of the Reporting Jurisdictions and its Common Shares are listed for trading on the TSX;
(ii) the Parent has complied and will comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the TSX Rules in connection with the 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 has not been revoked or otherwise expired) by any securities regulatory authority or, to the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authority.
(iv) the 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 been issued to and is outstanding against the Parent or its Directors, officers or promoters and, to the best of the Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the requirements of National Instrument 43-101, including without limitation, with respect to the preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common 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 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 Restricted Shares have been or will bebe registered under the Securities Act, that STC and Holder have no rights to require that the Restricted Shares be 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 a substantial period of time and that it may not be possible for STC and Holder to liquidate STC's and Holder's investment in Company; and that in any event the Restricted Shares 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 replacement or exchange therefore, are to bear a restrictive legend to this effect; (5) STC and Holder are acquiring the 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 Company and its officers; (6) STC and Holder have such knowledge and experience in business and financial matters that STC and Holder are capable of evaluating the business and financial matters of Company and the risks and merits relating thereto; (7) that there has never been any representation, guarantee, or warranty made to STC and Holder by any broker, Company, its agents or employees, or any other person, expressly or by implication, as applicableto any gain or profit to be derived from, offered, issued, sold and delivered to the Lender in compliance with all Applicable Securities Legislation; and
(viii) the first trade of the Lender Warrants or the Common Shares acquired upon the exercise thereof by the holder thereof will approximate or exact length of time that STC and Holder may 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 a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made required to prepare the market or to create a demand for the 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 remain an insider or officer of the Parentowner of, the selling security holder has no reasonable grounds Restricted Shares, or as to believe that the Parent is in default of any Applicable Securities Legislationother matter not expressly contained herein.
Appears in 1 contract
Sources: Acquisition Agreement (Online Vacation Center Holdings Corp)